`
`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
`
`
`
`
`
`APPLE’S OPPOSITION TO MAXELL’S MOTION FOR LEAVE TO FILE A SUR-
`REPLY IN FURTHER OPPOSITION TO APPLE RENEWED MOTION TO
`COMPEL LICENSING AND NEGOTIATION DOCUMENTS AND FOR SANCTIONS
`
`
`No good cause exists for Maxell’s Sur-Reply (D.I. 308) to Apple’s Renewed Motion to
`
`Compel (D.I. 156). The Parties’ long-running dispute on Maxell’s refusal to produce documents
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`from Hitachi—despite its close relationship with Hitachi—has already been the subject of five
`
`briefs (D.I. 156, 166, 254, 280, 300), one hearing, and one court order (D.I. 202). The factual
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`record that Apple has established is plain.
`
`First, Apple’s “continue[d]” citation in its reply to excerpts of the Maxell/HCE agreement
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`and Hitachi inventor testimony do not create good cause. D.I. 308 at 2. Apple presented both in
`
`its opening Renewed Motion. D.I. 254. Apple’s Reply does not cite any new agreements or
`
`inventor testimony. If Maxell needed to “discuss[] the broader agreement or testimony,” it could
`
`have done so (and did) in its Opposition. D.I. 308 at 2.
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`Second, the relief Apple seeks does not create any good cause. Apple fully presented that
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`request in its Renewed Motion, D.I. 254 at 7, to which Maxell fully responded, D.I. 280 at 7.
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`Finally, Mr. Loudermilk’s testimony also does not provide good cause even though Apple
`
`deposed him after Maxell filed its Opposition, and on the same day as Apple filed its Reply. While
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`1
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`Case 5:19-cv-00036-RWS Document 322 Filed 05/06/20 Page 2 of 4 PageID #: 10412
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`skeptical and to avoid burdening the Court with this issue, Apple was willing to agree to consent
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`to Maxell’s sur-reply on the condition that Maxell agreed to a further reply from Apple of the same
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`length. But Maxell refused. This confirmed that Mr. Loudermilk was a red herring, and
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`unsurprisingly he only features in two sentences in its 5-page sur-reply. Indeed, Maxell’s current
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`request appears to be part of Maxell’s new strategy to get the last word on Apple’s recent motions,
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`as Maxell informed Apple this morning that it also intends to seek (based on similarly tenuous
`
`grounds) a sur-reply to Apple’s renewed motion to compel infringement contentions (D.I. 284).
`
`The Court’s Standing Order permits Apple’s Opening Motion and Maxell’s Opposition.
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`D.I. 286. Here, the Court specifically allowed Apple to file a Reply, in lieu of a hearing, so that
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`Apple—as the moving party—could reply to Maxell’s Opposition. Apple did not understand the
`
`Court’s order as an invitation for yet more briefing from Maxell (or Apple).
`
`Accordingly, Apple respectfully requests that the Court deny Maxell’s motion for leave to
`
`file a sur-reply. But if the Court is inclined to accept Maxell’s sur-reply, Apple respectfully
`
`requests leave to file a response of the same length, attached hereto as Exhibit 1.
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`2
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`Case 5:19-cv-00036-RWS Document 322 Filed 05/06/20 Page 3 of 4 PageID #: 10413
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`May 4, 2020
`
`
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`
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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
`O’MELVENY & MYERS LLP
`400 S. Hope Street
`Los Angeles, CA 90071
`Telephone: 213-430-6000
`Facsimile: 213-430-6407
`
`Marc J. Pensabene (Pro Hac Vice)
`mpensabene@omm.com
`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
`
`Attorneys for Defendant Apple Inc.
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`3
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`Case 5:19-cv-00036-RWS Document 322 Filed 05/06/20 Page 4 of 4 PageID #: 10414
`Case 5:19-cv-00036-RWS Document 322 Filed 05/06/20 Page 4 of 4 PageID #: 10414
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that all counsel of record who are deemed to have
`
`consented to electronic service are being served with a copy of this docmnent via the Coufl's
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`CM/ECF system per Local Rule CV—5(a)(3) on May 4, 2020.
`
`/s/ Melissa R. Smith
`
`Melissa R. Smith
`
`
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