Case 2:21-cv-00072-JRG-RSP Document 265 Filed 12/22/21 Page 1 of 6 PageID #: 11840
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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 PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S
`MOTION FOR LEAVE TO FILE MOTION FOR
`SUMMARY JUDGMENT OF NO INVALIDITY
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`Case 2:21-cv-00072-JRG-RSP Document 265 Filed 12/22/21 Page 2 of 6 PageID #: 11841
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`By omission, AGIS misrepresents the facts underlying its motion for leave. AGIS implies
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`that Uber did not offer a deposition date for Dr. Siegel prior to the December 13, 2021 summary
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`judgment deadline. To the contrary, recognizing the compressed schedule, and prior even to the
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`exchange of rebuttal reports, Uber offered deposition dates for all of its experts during the expert
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`discovery period. In particular, on November 24, 2021, Uber notified AGIS that Dr. Siegel was
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`available to be deposed on December 7, 2021, prior to the December 8, 2021 expert discovery
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`deadline and the December 13 summary judgment deadline. Exhibit 1, November 24, 2021, Email
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`from C. Ranney (Counsel for Uber) to E. Iturralde (Counsel for AGIS). On November 28, 2021,
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`Mr. Iturralde responded, stating that AGIS’s counsel was unavailable on December 7-8 “due to
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`previously scheduled travel and professional commitments,” and asked Uber to “provide later
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`dates” for the expert depositions. Exhibit 2, November 28, 2021, Email from E. Iturralde to C.
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`Ranney (emphasis added). Thus, despite having joined a motion to amend the Docket Control
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`Order on October 7, 2021 (Dkt. No. 163) that set a December 8 expert discovery close and
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`December 13 summary judgment deadline, which schedule the Court adopted in October (Dkt.
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`No. 170), AGIS’s counsel failed apparently to plan for these significant dates.
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`As this Court is aware, on December 3, 2021, AGIS filed an opposed motion for entry of
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`an amended docket control order, which asked the Court to extend expert discovery to December
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`22 and the summary judgment deadline to December 23. Dkt. No. 241. In that motion, AGIS
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`acknowledged that Uber had offered all of its experts for deposition prior to the December 13
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`summary judgment deadline (and specifically Dr. Siegel for deposition on December 7), but that
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`AGIS had declined. Id. at 2. In its December 6 opposition, Uber explained that in early October
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`the parties had filed an agreed motion that set the close of expert discovery for December 8 and a
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`summary judgment deadline of December 13. Dkt. No. 242 at 2. Uber also explained that AGIS’s
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`proposed schedule modification would further compress an already compressed schedule to Uber’s
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`Case 2:21-cv-00072-JRG-RSP Document 265 Filed 12/22/21 Page 3 of 6 PageID #: 11842
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`prejudice. Id. at 3-4. Uber, moreover, opposed a schedule that would allow AGIS’s expert to sit
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`for deposition after the filing of summary judgment motions; such a schedule, Uber wrote, would
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`provide AGIS with “the unfair advantage of using Uber’s motions as a road map in preparing its
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`expert for deposition.” Id. at 6.
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`The Court entered a Sixth Amended Docket Control Order on December 14, 2021. Dkt.
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`No. 257. In that Order, the Court maintained the December 13, 2021 summary judgment deadline,
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`but extended expert discovery until December 22, 2022—the date requested by AGIS. Thus, the
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`Court declined both parties’ request that the summary judgment motion deadline be set after expert
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`depositions.
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`In its motion for leave, AGIS essentially asks the Court to reconsider that Order, and, in
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`doing so, ignores that it was the cause of the Order: Despite having two months to prepare, AGIS
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`and its counsel ignored the December 8 expert discovery deadline, by (1) refusing to take Uber’s
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`expert within the period allotted and (2) refusing to put up its own technical expert within the
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`period allotted. AGIS had the same two months—just like Uber—to notify its experts of the
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`schedule and to prepare and file summary judgment motions, with or without expert depositions.
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`On December 13, as required under the Fifth Amended (and now the Sixth Amended)
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`Docket Control Orders, Uber filed all of its motions for summary judgment and served those
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`motions on December 14, after receipt of the Court’s Sixth Amended Docket Control Order.
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`Uber’s summary judgment motions included several grounds for non-infringement, and Uber
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`complied with the schedule despite lacking AGIS’s infringement expert’s deposition. In its present
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`motion for leave, however, AGIS provides no explanation as to why Uber should have adhered to
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`the summary judgment deadline, but good cause exists for AGIS to file after the deadline. In other
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`words, AGIS provides no explanation as to why it is entitled to operate under a different set of
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`rules than Uber and receive benefits not afforded to Uber.
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`Case 2:21-cv-00072-JRG-RSP Document 265 Filed 12/22/21 Page 4 of 6 PageID #: 11843
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`Finally, AGIS’s misrepresentations by omission continue in that AGIS fails to apprise the
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`Court that it had previously deposed Dr. Siegel, that it previously filed motions concerning the
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`FBCB2 prior art and thus had the information it alleges it needed to support the late-filed summary
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`judgment motion. Indeed, in the prior Apple litigation, AGIS filed numerous motions concerning
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`Dr. Siegel and the FBCB2 prior art upon which he bases his invalidity opinions. See AGIS
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`Software Development LLC v. Huawei, Case No. 2:17-CV-0513-JRG (Lead Case) (E.D. Tex.),
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`Dkt. Nos. 233, 234, 235 and 236. AGIS, moreover, filed a motion concerning the FBCB2 prior
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`art in the pending Google litigation. See AGIS Software Development LLC v.Google LLC, Case
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`No. 2:19-CV-00361-JRG (Lead Case) (E.D. Tex.), Dkt. No. 174. Far from the epiphany AGIS
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`implies it had after Dr. Siegel’s recent deposition, AGIS knew well how it planned to challenge
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`Dr. Siegel and the FBCB2 invalidating prior art.
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`When AGIS chose this Court in which to file this case, it assumed a responsibility to abide
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`by the Court’s rules and the Court’s management of the case—including by adhering to the Court’s
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`schedule. Only Uber has accepted that responsibility. It was only Uber and its counsel that
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`planned for expert discovery within the time allotted by the Court. And it was only Uber and its
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`counsel that filed all summary judgment motions within the time provided by the Court’s schedule.
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`AGIS now, without any justification or explanation, asks the Court to turn a blind-eye to its
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`disregard for the Court’s procedures, its self-help tactics and its history with these issues.
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`Respectfully, Uber asks that this Court decline to do so and deny AGIS’s motion for leave.
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`Case 2:21-cv-00072-JRG-RSP Document 265 Filed 12/22/21 Page 5 of 6 PageID #: 11844
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`Dated: December 22, 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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`Melissa R. Smith
`Texas State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, TX 75670
`Telephone: 903.934.8450
`Facsimile: 903.934.9257
`Email: melissa@gillamsmithlaw.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 265 Filed 12/22/21 Page 6 of 6 PageID #: 11845
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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 22, 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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`5
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