`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`
`
`v.
`
`APPLE INC.,
`
`Plaintiff,
`
`Defendant.
`
`Case No. 5:19-cv-0036-RWS
`
`
`JURY TRIAL DEMANDED
`
`
`
`MAXELL, LTD.’S OPPOSED MOTION FOR LEAVE TO FILE A SUR-REPLY IN
`OPPOSITION TO APPLE INC.’S RENEWED MOTION TO COMPEL LICENSING
`AND NEGOTIATION DOCUMENTS AND FOR SANCTIONS
`
`
`Plaintiff Maxell, Ltd. (“Maxell”), through undersigned counsel, respectfully submits this
`
`Opposed Motion for Leave to file a Sur-Reply, attached hereto at Exhibit A, in Opposition to Apple
`
`Inc.’s (“Apple”) Renewed Motion to Compel Licensing and Negotiation Documents and for
`
`Sanctions. (D.I. 254).
`
`There is good cause for Maxell’s proposed filing of its Sur-Reply at this time. With respect
`
`to motions to compel, reply briefing is generally not permitted. See Standing Order Regarding
`
`“Meet and Confer” Obligations Relating to Discovery Disputes at ¶1. The Court, however, issued
`
`an Order stating: “Given the current climate, including General Order 20-03, it is ORDERED that
`
`Apple may file a reply brief in support of its motion” to Compel Licensing and Negotiation
`
`Documents. D.I. 286. Although not explicitly stated in the Court’s Order, it appears that reply
`
`briefing may have been permitted to enable Apple to respond to Maxell’s Opposition in lieu of a
`
`response that would typically be made at an in-person hearing on the motion. Assuming that is
`
`correct, and Maxell will not be permitted to address Apple’s Reply at a hearing, Maxell submits
`
`that it should be provided an equal opportunity to respond to the arguments raised in Apple’s
`
`
`
`
`
`Case 5:19-cv-00036-RWS Document 309 Filed 05/04/20 Page 2 of 4 PageID #: 10304
`
`
`Reply. Maxell specifically seeks to file the attached Sur-reply of 5 pages, which is equal in length
`
`to the Reply filed by Apple. (D.I. 300).
`
`Maxell’s proposed Sur-reply is further warranted by the fact that Apple’s motion is not
`
`merely a motion to compel, but also contains a request for a harsh sanction, namely precluding
`
`Maxell from relying on any documents that originated from Hitachi and testimony from any
`
`Hitachi or Hitachi subsidiary witnesses.
`
` Maxell’s proposed Sur-reply is also necessary in order to address mischaracterizations
`
`made by Apple in its Reply. For example, Apple continues to cite to excerpts of an agreement
`
`between Maxell and HCE and excerpts of inventor testimony, which are both misleading in the
`
`absence of a discussion of the broader agreement or testimony. Moreover, the Sur-reply is
`
`necessary to enable Maxell to present relevant testimony of Alan Loudermilk, whose deposition
`
`was held on April 28, 2020, after Maxell’s Opposition was filed.
`
`In view of the foregoing, Maxell submits that good cause exists to grant it leave to file the
`
`attached Sur-reply to its Opposition.
`
`
`
`Dated: May 4, 2020
`
`
`
`
`
`By:
`
`/s/ Jamie B. Beaber
`
`Geoff Culbertson
`Kelly Tidwell
`Patton, Tidwell & Culbertson, LLP
`2800 Texas Boulevard (75503)
`Post Office Box 5398
`Texarkana, TX 75505-5398
`Telephone: (903) 792-7080
`Facsimile: (903) 792-8233
`gpc@texarkanalaw.com
`kbt@texarkanalaw.com
`
`Jamie B. Beaber
`Alan M. Grimaldi
`Kfir B. Levy
`
`
`
`2
`
`
`
`Case 5:19-cv-00036-RWS Document 309 Filed 05/04/20 Page 3 of 4 PageID #: 10305
`
`
`James A. Fussell, III
`Baldine B. Paul
`Tiffany A. Miller
`Saqib Siddiqui
`Bryan Nese
`William J. Barrow
`Alison T. Gelsleichter
`Clark S. Bakewell
`MAYER BROWN LLP
`1999 K Street, NW
`Washington, DC 20006
`Telephone: (202) 263-3000
`Facsimile: (202) 263-3300
`jbeaber@mayerbrown.com
`agrimaldi@mayerbrown.com
`klevy@mayerbrown.com
`jfussell@mayerbrown.com
`bpaul@mayerbrown.com
`tmiller@mayerbrown.com
`ssiddiqui@mayerbrown.com
`bnese@mayerbrown.com
`wbarrow@mayerbrown.com
`agelsleichter@mayerbrown.com
`cbakewell@mayerbrown.com
`
`Robert G. Pluta
`Amanda S. Bonner
`MAYER BROWN LLP
`71 S. Wacker Drive
`Chicago, IL 60606
`(312) 782-0600
`rpluta@mayerbrown.com
`asbonner@mayerbrown.com
`
`Counsel for Plaintiff Maxell, Ltd.
`
`
`
`3
`
`
`
`Case 5:19-cv-00036-RWS Document 309 Filed 05/04/20 Page 4 of 4 PageID #: 10306
`
`
`CERTIFICATE OF CONFERENCE
`
`I hereby certify that Plaintiff Maxell, Ltd. has complied with the requirements of Local
`Rule CV-7(h) governing this case. Specifically, lead and local counsel for the parties discussed
`this request on a telephone conference held May 1, 2020. Maxell requested that it be given 5 pages
`to respond to Apple’s Reply. Apple’s counsel indicated that Apple would oppose the motion.
`
`
`
`/s/ Jamie B. Beaber
`Jamie B. Beaber
`
`
`
`
`
`/s/ Geoff Culbertson
`Geoff Culbertson
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that all counsel of record who are deemed to have consented to
`electronic service are being served this 4th day of May, 2020, with a copy of this document via the
`Court’s CM/ECF system per Local Rule CV-5(a)(3).
`
`
`/s/ Jamie B. Beaber
`Jamie B. Beaber
`
`
`
`
`
`
`
`
`
`
`
`
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