Case 5:19-cv-00036-RWS Document 503 Filed 08/18/20 Page 1 of 8 PageID #: 26988
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
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`MAXELL, LTD.,
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`Plaintiff
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`Civil Action NO. 5:19-cv-00036-RWS
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`v.
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`APPLE INC.,
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`JURY TRIAL DEMANDED
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`Defendant.
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`APPLE INC.’S OPPOSED MOTION FOR LEAVE
`TO EXTEND THE DEADLINE TO DEPOSE PATRICK MURPHY
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`Case 5:19-cv-00036-RWS Document 503 Filed 08/18/20 Page 2 of 8 PageID #: 26989
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`I.
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`Introduction
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`Apple respectfully requests that the Court extend the August 15, 2020 deadline for Apple
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`to depose Patrick Murphy to October 15, 2020. The Court set this deadline based in part on the
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`expectation at the time that Japan would begin to relax applicable travel restrictions by the end of
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`July. See D.I. 409 at 5. Unfortunately that has not happened—due to the continued impact of
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`COVID-19, Japan has not lifted its travel restrictions, and Apple has, therefore, been unable to
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`depose Mr. Murphy, who currently resides in Japan. Recent news reports indicate that Japan
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`now expects to start permitting travel at least to nearby Singapore in September. If that happens,
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`Apple believes it could make all the necessary arrangements to depose Mr. Murphy remotely
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`from Singapore, or any other available, nearby venue, by October 15, 2020.
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`The Court also considered the impending October trial date in setting the August 15
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`deadline. See D.I. 409 at 5. But also due to the continued impact of COVID-19, that trial date
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`has since been pushed to December 7, 2020, which, as the Court contemplated, provides
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`sufficient time to extend pending deadlines. See D.I. 495 at 1 (requesting that the parties “move
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`to amend other pending deadlines, if deemed necessary”). Apple’s request to extend the
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`deadline for Mr. Murphy’s deposition to October 15 still leaves almost 2 months before the new
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`trial date for this case.
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`Good cause exists to extend the deadline to depose Mr. Murphy. Apple has been unable
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`to depose Mr. Murphy because of the continued COVID-19 travel restrictions. The Court has
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`already found that Mr. Murphy’s testimony is likely important—he is one of two witnesses with
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`knowledge of the June 2013 negotiations between Hitachi and Apple. D.I. 409 at 5. And with
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`trial rescheduled for December, extending the deadline would not be prejudicial to Maxell.
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`II.
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`Legal Standard
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`A schedule may be modified only for good cause and with the judge’s consent. D.I. 409
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`1
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`Case 5:19-cv-00036-RWS Document 503 Filed 08/18/20 Page 3 of 8 PageID #: 26990
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`at 2. In determining whether good cause exists, the Fifth Circuit considers four factors: (1) the
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`explanation for the failure to meet the deadline; (2) the importance of the discovery; (3) the
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`potential prejudice; and (4) the availability of a continuance to cure such prejudice. Id. (citing
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`S&W Enters. v. SouthTrust Bank, 315 F.3d 533, 536 (5th Cir. 2003).)
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`III. Argument
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`The Court previously found that “good causes exists for Apple to depose Mr. Murphy,”
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`and that good cause still exists. D.I. 409 at 4. Good cause also exists for the Court to allow a
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`modest extension of the deadline for Apple to depose Mr. Murphy—Japan has not yet lifted its
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`applicable travel restrictions and the trial in this case has been rescheduled to December 7, 2020.
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`Extending the deadline to depose Mr. Murphy will neither prejudice Maxell nor require a trial
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`continuation.
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`The explanation for the failure to comply. When the Court granted Apple’s motion
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`and set the August 15 deadline for Mr. Murphy’s deposition, multiple sources had reported that
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`Japan was working to relax travel restrictions with nearby countries. Ex. 1, Japan to negotiate
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`easing travel bans with China, S. Korea, Taiwan, Kyodo News, July 22, 2020,
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`https://english.kyodonews.net/news/2020/07/f7f95e23f783-japan-to-negotiate-easing-travel-
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`bans-with-china-s-korea-taiwan.html (last accessed August 14, 2020). And, as the Court noted,
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`Apple was “prepared to go forward with a deposition shortly after applicable travel restrictions
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`lift at the end of July.” D.I. 409 at 5. Unfortunately, Japan has not yet lifted the applicable travel
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`restrictions or bar on remote depositions. Specifically, the U.S. embassy in Japan is still not
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`permitting video depositions. Ex. 2, Depositions in Japan, U.S. Embassy and Consulates in
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`Japan, https://jp.usembassy.gov/u-s-citizen-services/attorneys/depositions-in-japan/ (last
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`accessed August 14, 2020). And Japan is still denying entry to travelers from South Korea,
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`Hong Kong, Taiwan, Singapore, and the U.S., among other countries. Ex. 3, Border
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`2
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`Case 5:19-cv-00036-RWS Document 503 Filed 08/18/20 Page 4 of 8 PageID #: 26991
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`enforcement measures to prevent the spread of novel coronavirus (COVID-19), Ministry of
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`Foreign Affairs of Japan, https://www.mofa.go.jp/ca/fna/page4e_001053.html (last accessed
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`August 14, 2020). If Mr. Murphy left Japan now to be deposed remotely from a country that
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`permits depositions for U.S. litigation, he would be stranded, with no way to return home to
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`Japan.
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`Based on current news reports, Apple has reason to believe that it could depose Mr.
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`Murphy by October 15. Japan and Singapore, for example, have mutually agreed to permit
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`travel in September. Ex. 4, Japan, Singapore to ease COVID-19 travel restrictions from Sept.,
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`Kyodo News, August 13, 2020, https://english.kyodonews.net/news/2020/08/edd923e8f26e-
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`breaking-news-japan-singapore-to-ease-border-restrictions-from-sept-japan.html (last accessed
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`August 14, 2020). While rules concerning travel continue to evolve with the pandemic, Apple is
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`prepared to go forwarded with a remote deposition in Singapore (or another nearby venue) once
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`travel is permitted.
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`The importance of the discovery. The Court found that Mr. Murphy likely has
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`important information to this case. D.I. 409 at 5. That Apple was unable to “secure
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`documentary evidence or depose the only other alleged witness with personal knowledge [of the
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`June 2003 negotiations between Apple and Hitachi] underscores the importance of Mr. Murphy’s
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`deposition testimony.” Id.
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`Potential Prejudice. Extending the deadline will not cause Maxell any undue prejudice.
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`First, as the Court explained in its Order, any prejudice resulting from a late deposition “is
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`heightened the closer the matter gets to trial.” D.I. 409 at 5. Even if Maxell would suffer any
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`prejudice based on the timing of Mr. Murphy’s deposition—Apple maintains that the facts do not
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`support that it would—the new December 7 trial date provides sufficient time for Apple to
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`3
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`Case 5:19-cv-00036-RWS Document 503 Filed 08/18/20 Page 5 of 8 PageID #: 26992
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`depose Mr. Murphy without prejudicing Maxell. And as noted above, current news reports
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`suggest that Apple will be able to depose Mr. Murphy within the requested 2-month extension
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`from a nearby venue, such as Singapore.1
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`Second, Mr. Murphy’s testimony will not necessitate or justify either party
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`supplementing expert reports or dispositive motions. Mr. Murphy will testify about his personal
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`knowledge of the pre-suit communications between Apple and Hitachi on which Maxell bases its
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`willfulness claims and its claims for pre-suit damages. See D.I. 409 at 3-5. Apple proffers that
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`Mr. Murphy’s testimony will be entirely consistent with the detailed description of those pre-suit
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`communications that Apple already provided to Maxell in Apple’s interrogatory responses, and
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`the documents cited therein. See, e.g., Ex. 5, Apple’s Response to Interrogatory No. 5 at 68, 73.
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`The parties have completed expert discovery and fully briefed dispositive motions. D.I. 409 at 5.
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`Mr. Murphy will not provide any new or different material facts that would warrant
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`supplementation.
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`Moreover, although Maxell bears the burden of proving that it is entitled to enhanced or
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`pre-suit damages (see D.I. 368 at 5-6) and has known since the beginning of this case that Mr.
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`Murphy has personal knowledge of the parties’ pre-suit communications (see D.I. 307 at 2, 6),
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`Maxell made no effort to depose Mr. Murphy. Having not sought his deposition, Maxell cannot
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`now claim that Mr. Murphy’s testimony was needed for its expert reports or any motions.
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`Indeed, while extending the deadline for Apple to depose Mr. Murphy will not prejudice
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`Maxell, not doing so could impose significant prejudice on Apple. As explained in Apple’s
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`1 Apple is also exploring whether, subject to this Court’s permission, Mr. Murphy could testify
`remotely at trial by live videoconference from a nearby venue, such as was permitted under
`Judge Gilstrap’s recent order in a recent trial. See Optis Wireless Tech, LLC v. Apple, No. 2:19-
`CV-00066-JRG, Dkt. 387 at *6 (E.D. Tex. July 21, 2020) (ordering a German witness to testify
`by “[r]eal time live video testimony” at trial).
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`Case 5:19-cv-00036-RWS Document 503 Filed 08/18/20 Page 6 of 8 PageID #: 26993
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`motion for partial summary judgment on damages, Maxell has failed to meet its burden of
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`showing that it is entitled to enhanced or pre-suit damages. See D.I. 368. Should the Court
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`disagree and deny Apple’s motion, Apple should be permitted to present its side of the story
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`regarding the parties’ pre-suit communications—all of which has already been disclosed to
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`Maxell—to the jury through Mr. Murphy’s testimony.
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`Availability of a continuance to cure the prejudice. Other than the relief sought by
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`this Motion, there is no need for any other continuance to cure any prejudice relating to the
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`deposition of Mr. Murphy.
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`IV. Conclusion
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`Apple respectfully requests that the Court extend the deadline to depose Patrick Murphy
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`to October 15, 2020. If it would be helpful to the Court, Apple proposes that it file an update in
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`one month, on September 15, regarding (1) the status of the travel restrictions and deposition
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`options and (2) whether Apple expects to be able to complete the deposition by October 15 or, if
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`not, expects to request additional time for the deposition.
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`5
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`Case 5:19-cv-00036-RWS Document 503 Filed 08/18/20 Page 7 of 8 PageID #: 26994
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`August 14, 2020
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`/s/ Luann L. Simmons
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`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
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`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
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`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
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`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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`Case 5:19-cv-00036-RWS Document 503 Filed 08/18/20 Page 8 of 8 PageID #: 26995
`Case 5:19-cv-OOO36-RWS Document 503 Filed 08/18/20 Page 8 of 8 PageID #: 26995
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all c01msel of record who are deemed to have
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`consented to electronic service are being served with a copy of this docmnent via the Court's
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`CM/ECF system per Local Rule CV—5(a)(3) on August 14, 2020.
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`/s/ Melissa R. Smith
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`Melissa R. Smith
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`CERTIFICATE OF CONFERENCE
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`On August 13, 2020, pursuant to Local Rule CV-7(h), counsel for Defendants met and
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`conferred with counsel for Plaintiff, and counsel for Plaintiff indicated that Plaintiff is opposed to
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`the relief sought.
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`/s/ Melissa R. Smith
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`Melissa R. Smith
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