Case 2:21-cv-00072-JRG-RSP Document 242 Filed 12/06/21 Page 1 of 9 PageID #: 7936
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CASE NO. 2:21-cv-00072-JRG
`(Lead Case)
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`CASE NO. 2:21-cv-00026-JRG
`(Member Case)
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`§
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`AGIS SOFTWARE DEVELOPMENT LLC
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`v.
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`T-MOBILE USA, INC., AND T-MOBILE
`US, INC.
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`AGIS SOFTWARE DEVELOPMENT LLC
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`v.
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`UBER TECHNOLOGIES, INC.,
`d/b/a UBER.
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`DEFENDANT UBER TECHNOLOGIES, INC.’S OPPOSITION TO AGIS
`SOFTWARE DEVELOPMENT LLC’S OPPOSED MOTION FOR ENTRY OF
`SIXTH AMENDED DOCKET CONTROL ORDER
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`Case 2:21-cv-00072-JRG-RSP Document 242 Filed 12/06/21 Page 2 of 9 PageID #: 7937
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`I.
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`INTRODUCTION
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`AGIS’s Opposed Motion for Entry of Sixth Amended Docket Control Order demonstrates
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`the little care and respect that AGIS has for this Court and the rules governing these proceedings.
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`The case schedule was entered in June and modestly adjusted in early October through a joint
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`motion—expressly to accommodate the “large number of depositions that need to occur, including
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`expert depositions.” Dkt. 163 at 1. AGIS and its expert had ample time to plan and prepare for
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`depositions under the agreed schedule. That clearly did not happen. Instead, AGIS waited until
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`six days before the expert discovery deadline to inform Uber that its sole technical expert—who
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`submitted two reports—could not sit for deposition until nearly two weeks after the deadline, and
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`well after the deadline for dispositive and Daubert motions.
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`AGIS’s motion demonstrates a lack of diligence expected by this Court and absolutely
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`necessitated by the very swift schedule AGIS clearly desired when it chose this forum. Indeed,
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`the expert’s unavailability was not unforeseeable—he is simply too busy with other cases. Dkt.
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`241-1. Either AGIS did not bother to check that its expert was available in the agreed time frame
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`(or anything close to it), or AGIS knew he would not be and still asked the Court to enter a schedule
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`it had no intention of following. Neither excuse warrants an unworkable schedule extension that
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`would impede the Court’s ability to consider the dispositive and Daubert motions before the
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`Pretrial Conference and give AGIS a tactical advantage by delaying its expert’s deposition until
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`just before the motion deadline. AGIS’s request to accommodate its lack of scheduling foresight
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`and reasonable diligence—at the expense of this Court and Uber—should be denied.
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`Should the Court believe a schedule adjustment is appropriate, Uber respectfully requests
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`that the Court adopt one of two proposals:
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`1. Adopt the compromise Uber proposed and AGIS rejected—shifting the dispositive /Daubert
`motion deadlines to December 17, 2021 (from December 13) and requiring AGIS’s expert to
`complete his depositions by December 14, 2021;
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`1
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`Case 2:21-cv-00072-JRG-RSP Document 242 Filed 12/06/21 Page 3 of 9 PageID #: 7938
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`2. Or, if AGIS’s expert truly cannot make time for this case until the week of December 20, the
`Court should require AGIS to file its dispositive and Daubert motions on the current schedule
`(by December 13), while moving the deadline for Uber to file its motions to December 24. All
`oppositions would remain due on December 30 as currently scheduled.
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`Either of these compromises preserves the Court’s ability to consider the fully briefed dispositive
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`and Daubert motions before the Pretrial Conference. And either proposal reduces the tactical
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`advantage AGIS would gain by delaying its expert’s deposition. AGIS cannot reasonably
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`complain about either approach, since this problem is entirely of its own making.
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`Should the Court desire, Uber is prepared to attend an in-person hearing this week to
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`resolve this scheduling problem.
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`II.
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`BACKGROUND
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`The schedule in this case was originally entered on June 4, 2021, setting the close of expert
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`discovery for December 3, 2021, the dispositive and Daubert motion deadline for December 9,
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`2021, and the Pretrial Conference for February 2, 2022. Dkt. 80. On October 7, 2021, the Parties
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`filed a joint motion to make modest modifications to certain fact and expert discovery deadlines,
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`as well as the deadlines to exchange expert disclosures and dispositive motion briefing. Dkt. 163.1
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`On October 18, the Court entered an Amended DCO extending, inter alia, the deadline to complete
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`expert discovery five days, to December 8, 2021, and the deadlines for dispositive and Daubert
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`motions four days, to December 13, 2021. Dkt. 170. The Pretrial Conference remains scheduled
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`for February 2, 2022. Id.
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`Consistent with that schedule, and before it served rebuttal reports, on November 22 and
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`24, Uber offered deposition dates for its three technical experts and one damages expert on
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`1 The parties subsequently filed an amended joint motion to amend the DCO on October 12, as the
`parties had inadvertently included the original Markman date in the previously proposed order.
`See Dkt. 165.
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`2
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`Case 2:21-cv-00072-JRG-RSP Document 242 Filed 12/06/21 Page 4 of 9 PageID #: 7939
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`December 7, December 8, and December 8-10, respectively. Ex. 1 at 7. AGIS responded stating
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`that it would take Uber’s damages expert’s deposition on December 9 or 10, but that it was
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`“unavailable on December 7-8 due to previously scheduled travel and professional commitments”
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`and requested “later dates.” Id. at 6. In the spirit of cooperation, Uber asked AGIS to provide a
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`new Docket Control Order with a proposed schedule adjustment, as well as proposed dates for the
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`depositions of AGIS’s experts. Id. at 5–6. The parties scheduled the deposition of two of Uber’s
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`experts (invalidity and damages) and one of AGIS’s experts (damages). Id. at 2–4. AGIS,
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`however, still failed to provide deposition dates for its sole technical expert, James McAlexander.
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`After Uber twice followed up (id. at 1, 3), AGIS finally revealed that Mr. McAlexander was
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`allegedly unavailable for deposition until December 20 and December 22. Id. at 1.2 AGIS further
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`proposed shifting the dispositive/Daubert motion deadline to December 23, with oppositions due
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`January 10, 2022. Id.
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`III. ARGUMENT
`A.
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`AGIS’s Proposal Unfairly Prejudices the Court and Uber
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`While AGIS’s proposed ten-day schedule shift may seem modest in the abstract, it is
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`unworkable here. Among other things, AGIS’s proposal means that briefing on dispositive and
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`Daubert motions will not be complete until approximately one week before the Pretrial
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`Conference, leaving the Court limited time to consider the parties’ papers. Also, AGIS’s proposal
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`sets the deadline for dispositive and Daubert motions to the day after AGIS proposes that its
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`technical witness complete his depositions, leaving Uber virtually no time to prepare its motions
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`in light of AGIS’s expert’s testimony. The original schedule provided six days between the close
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`of expert discovery and the deadline for dispositive and Daubert motions, and the agreed amended
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`2 Mr. McAlexander provided two expert reports, one on infringement and one on validity, thus
`Uber is entitled to two days of deposition pursuant to the Discovery Order. See Dkt. 79, ¶ 5(d).
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`3
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`schedule reduced that to five days. AGIS now wants Uber to file its motions the day after it takes
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`Mr. McAlexander’s deposition.3 Uber intends to file case-dispositive motions and serious
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`challenges to AGIS’s experts, and AGIS seeks to hinder both Uber’s ability to prepare those
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`motions and the Court’s ability to consider them—all as a penalty for AGIS’s inexcusable inability
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`to meet the agreed schedule.
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`B.
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`AGIS Has No Excuse for Failing to Comply with the Deadlines
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`As explained, the expert discovery and motions deadlines in this case were entered in June
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`and modestly adjusted in October by agreement of the parties. AGIS knew the schedule when it
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`was selecting experts and disclosed Mr. McAlexander in August, well before it jointly moved to
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`modify the schedule expressly to accommodate expert depositions. At no point did AGIS ever
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`raise that its sole technical expert would not be available to be deposed during the entire period
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`from the completion of expert reports to the filing of dispositive and Daubert motions. Also
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`troubling is the professed excuse for Mr. McAlexander’s lack of availability. Mr. McAlexander
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`did not have unexpected circumstances arise; he simply prioritized his expert work on other cases.
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`See Dkt. 241-1, ¶¶ 6–9. Notably, Mr. McAlexander does not say when AGIS asked for his
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`availability or when he informed AGIS of his unavailability, or when his competing commitments
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`were scheduled. Indeed, despite Mr. McAlexander’s statement that he was “unavailable for
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`deposition the week of November 29, 2021” because of his other expert work (Id., ¶ 6), Uber
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`understands that Mr. McAlexander was scheduled to testify in a trial the week of November 29 in
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`the Central District of California (in a case not identified in his declaration); on November 17,
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`3 Moreover, AGIS seeks the improper tactical advantage of back-loading its sole technical
`witness until the end of the discovery period, after most or all of Uber’s experts. Not only would
`this give AGIS more time than Uber to prepare its motions, it would give AGIS the unfair
`advantage of putting up its expert on infringement—on which it bears the burden—until the end
`of expert discovery and potentially after Uber’s rebuttal expert has been deposed.
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`4
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`Case 2:21-cv-00072-JRG-RSP Document 242 Filed 12/06/21 Page 6 of 9 PageID #: 7941
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`2021, the California court granted a motion in limine precluding Mr. McAlexander’s testimony,
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`and, presumably, freeing his schedule. See Ex. 2 (Netlist Inc. v. Samsung Electronics Co., Ltd.,
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`No. 8:20-cv-00993, Dkt. 243 at 9 (C.D. Cal. Nov. 17, 2021)). It is unclear how Mr. McAlexander
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`was apparently available to testify in the Netlist case despite his other commitments, but
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`unavailable to testify in this case.
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`Either AGIS did not bother to coordinate with its sole technical expert to ensure he would
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`be available during the agreed discovery period, or AGIS knew he would not be and hid that fact
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`from Uber and the Court. Regardless, AGIS’s tactics are disrespectful of this Court’s schedule
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`and extremely prejudicial to Uber. AGIS’s proposal has the perverse result of rewarding its lack
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`of preparation, while penalizing the Court and Uber. AGIS chose to file its case in this Court, but
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`it is apparently not prepared to meet the demands of litigating here.
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`* * *
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`Should the Court be inclined to adjust the schedule, Uber has proposed an extension of the
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`expert discovery deadline to December 14, with dispositive and Daubert motions due December
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`17. The remaining dates would be unchanged. This reduces Uber’s time to prepare its motions
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`after Mr. McAlexander’s depositions to three days, instead of the (at least) five days AGIS agreed
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`to in the amended schedule (or the six days in the original schedule). It would also reduce Uber’s
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`time to respond to AGIS’s dispositive and Daubert motions, if any.
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`Alternatively, Uber is willing to agree to take Mr. McAlexander’s depositions on the
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`offered dates of December 20 and 22, provided that AGIS be required to file its dispositive motions
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`and motions to strike on the current schedule (by December 13), the deadline for Uber’s motions
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`be moved to December 24, and oppositions to all motions remain due on December 30. This gives
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`Uber only two days after expert depositions to prepare its motions, but it reduces the tactical
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`5
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`Case 2:21-cv-00072-JRG-RSP Document 242 Filed 12/06/21 Page 7 of 9 PageID #: 7942
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`advantage AGIS would gain by deposing Uber’s experts much further in advance of its own
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`expert’s deposition and the motions deadline.
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`AGIS’s proposal places all of the penalty for its carelessness on Uber and the Court—and
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`none on itself. Uber’s proposals still hinder its ability to prepare its motions; they simply call for
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`AGIS (and not the Court) to share in the inconvenience AGIS’s dilatory conduct has caused.
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`Uber is prepared to attend an in-person hearing this week to resolve this problem. But
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`Uber respectfully requests resolution this week, in advance of the current motion deadline.
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`Otherwise, should AGIS be permitted to delay its expert’s deposition until after the motion
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`deadline, Uber would be unable to test Mr. McAlexander’s opinions in deposition to inform its
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`dispositive and Daubert motions, and AGIS would have the unfair advantage of using Uber’s
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`motions as a road map in preparing its expert for deposition.
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`IV. CONCLUSION
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`For the foregoing reasons, Uber respectfully requests that the Court deny AGIS’s motion,
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`or, alternatively, that the Court either (1) shift the expert discovery deadline to December 14, 2021
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`and the dispositive/Daubert motion deadlines to December 17, 2021, with all other dates
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`unchanged; or (2) shift the expert discovery deadline to December 22 and Uber’s (but not AGIS’s)
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`deadline for dispositive and Daubert motions to December 24, with all other dates unchanged.
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`6
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`Case 2:21-cv-00072-JRG-RSP Document 242 Filed 12/06/21 Page 8 of 9 PageID #: 7943
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`Dated: December 6, 2021
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`By: /s/ Mark N. Reiter
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`Mark N. Reiter
`Texas State Bar No. 16759900
`mreiter@gibsondunn.com
`Robert A. Vincent
`Texas State Bar No. 24056474
`rvincent@gibsondunn.com
`Nathan R. Curtis
`Texas State Bar No. 24078390
`ncurtis@gibsondunn.com
`Ashbey N. Morgan
`Texas State Bar No. 24106339
`anmorgan@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`2001 Ross Avenue, Suite 2100
`Dallas, TX 75201-6912
`Telephone: 214.698.3360
`Facsimile: 214.571.2907
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`By:
`
`
`/s/ Melissa R. Smith
`Melissa R. Smith
`Texas State Bar No. 24001351
`GILLIAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: 903.934.8450
`Facsimile: 903.934.9257
`Email: melissa@gilliamsmithlaw.com
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`Attorneys for Defendant Uber Technologies, Inc.
`d/b/a Uber
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`Case 2:21-cv-00072-JRG-RSP Document 242 Filed 12/06/21 Page 9 of 9 PageID #: 7944
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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 6, 2021, the foregoing was electronically filed in
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`compliance with Local Rule CV-5(a) and served via the Court’s electronic filing system on all
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`counsel who have consented to electronic service.
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`/s/ Mark N. Reiter
`Mark N. Reiter
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`8
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