`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`Plaintiff,
`
`
`
`
`
`
`
`vs.
`
`APPLE INC.,
`
` Civil Action No. 5:19-cv-00036-RWS
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`
`
`
`
`
`Defendant.
`
`APPLE INC.’S NOTICE OF WITHDRAWAL OF MOTION FOR PROTECTIVE
`ORDER (D.I. 116) AND RESPONSE TO MAXELL, LTD.’S NOTICE (D.I. 132)
`
`
`
`On November 18, 2019, Plaintiff Maxell, Ltd. (“Maxell’s”) filed a Notice of Withdrawal
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`of Deposition Notice on Andrew Stein, stating that it was withdrawing its Rule 30(b)(1) notice of
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`deposition for Andrew Stein “subject to Apple’s compliance with the Court’s Order [on Maxell’s
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`Motion to Compel (D.I. 126)] and service of a response to Interrogatory No. 6.” D.I. 132. Maxell
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`further declared that Apple’s Motion for Protective Order (D.I. 116, “Motion”) is now moot. Dkt.
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`No. 132.
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`As set forth in Apple’s Motion, Maxell’s deposition notice to Mr. Stein was improper for
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`reasons wholly independent of the status of Apple’s response to Maxell’s Interrogatory No. 6.
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`Nonetheless, given that Maxell has withdrawn its deposition notice, Apple hereby withdraws its
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`Motion without prejudice to refiling should Maxell attempt (again) to harass Apple in-house
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`counsel with an improper deposition notice. Apple further reserves the right to seek fees and costs
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`1
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`Case 5:19-cv-00036-RWS Document 142 Filed 11/25/19 Page 2 of 4 PageID #: 5971
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`in connection with its Motion. See, e.g., L.C. Eldridge Sales Co., Ltd v. Azen Manufacturing, Pte.
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`Ltd., No. 6:11-CV-599, Dkt. 171 (E.D. Tex. June 14, 2013) (awarding “reasonable expenses
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`incurred in making the motion to compel, including attorney’s fees,” despite denying relief because
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`the non-movant served responses “two days after the motion to compel was filed”).
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`Apple also wishes to correct Maxell’s accusation “that Apple may continue to withhold
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`relevant information despite the Court’s Order.” 1 Dkt. No. 132. Throughout this case, Apple has
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`complied with its discovery obligations and the required timing for those obligations. And in
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`response to Maxell’s numerous overbroad and unduly burdensome requests, Apple has provided
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`documents and information beyond any objective assessment of the scope of required discovery
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`in this case in an effort to narrow the parties’ disputes and avoid burdening the Court with
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`discovery motion practice. Indeed, Apple has produced more than 24,000 documents totaling over
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`1,000,000 pages and made available for inspection over 1.2 million source code files—a far cry
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`from “with[o]ld[ing] relevant information,” as Maxell accuses. As it has with all its obligations in
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`this case, Apple intends to comply fully with this Court’s Order.
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`1 Apple respectfully submits that such rhetoric does not conform “to the expected level of
`professionalism and civility this Court insists upon.” See, e.g., ITG Brands, LLC v. Texas, Case
`No. 5:19-cv-48-JRG, Dkt. No. 40 at 15 n.11 (E.D. Tex. June 6, 2019); Polaris v. Samsung, Case
`No. 2:17-cv-00715-JRG, Dkt. No. 285 at 11 (E.D. Tex. April 24, 2019).
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`
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`Case 5:19-cv-00036-RWS Document 142 Filed 11/25/19 Page 3 of 4 PageID #: 5972
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`November 25, 2019
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`/s/ Luann L. Simmons
`
`
`
`Luann L. Simmons (Pro Hac Vice)
`lsimmons@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center
`28th Floor
`San Francisco, CA 94111
`Telephone: 415-984-8700
`Facsimile: 415-984-8701
`
`Xin-Yi Zhou (Pro Hac Vice)
`vzhou@omm.com
`Anthony G. Beasley (TX #24093882)
`tbeasley@omm.com
`O’MELVENY & MYERS LLP
`400 S. Hope Street
`Los Angeles, CA 90071
`Telephone: 213-430-6000
`Facsimile: 213-430-6407
`
`Laura Bayne Gore (Pro Hac Vice)
`lbayne@omm.com
`O’MELVENY & MYERS LLP
`Times Square Tower, 7 Times Square
`New York, NY 10036
`Telephone: 212-326-2000
`Facsimile: 212-326-2061
`
`Melissa R. Smith (TX #24001351)
`melissa@gilliamsmithlaw.com
`GILLIAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
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`Attorneys for Defendant Apple Inc.
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`
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`Case 5:19-cv-00036-RWS Document 142 Filed 11/25/19 Page 4 of 4 PageID #: 5973
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`CERTIFICATE OF SERVICE
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`
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`The undersigned hereby certifies that all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the Court's
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`CM/ECF system per Local Rule CV-5(a)(3) on November 25, 2019.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`
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