Case 6:12-cv-00799-JRG Document 170 Filed 06/27/14 Page 1 of 6 PageID #: 5209
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Case No. 6:12-cv-00799-LED
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`INVENSYS SYSTEMS, INC.,
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`Plaintiff,
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`vs.
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`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
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`Defendants.
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`and
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`MICRO MOTION INC., USA,
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`Counterclaim-Plaintiff,
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`vs.
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`INVENSYS SYSTEMS, INC.,
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`Counterclaim-Defendant.
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`MICRO MOTION, INC.’S AND EMERSON ELECTRIC CO.’S
`OPPOSITION TO INVENSYS SYSTEMS, INC.’S
`MOTION FOR EXPEDITED BRIEFING
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`Case 6:12-cv-00799-JRG Document 170 Filed 06/27/14 Page 2 of 6 PageID #: 5210
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`Micro Motion, Inc. (“Micro Motion”) and Emerson Electric Co. (“Emerson”)
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`oppose Invensys Systems, Inc.’s Motion for Expedited Briefing on Invensys’s Motion to Compel
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`and for Sanctions. (Dkt. No. 168.) Micro Motion and Emerson respectfully request the Court
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`deny Invensys’s Motion for Expedited Briefing and request the Court set the usual briefing
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`schedule for Invensys’s Motion to Compel pursuant to Local Rule CV-7.
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`Both Invensys’s Motion for Expedited Briefing and the underlying Motion to
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`Compel were filed without conducting a proper meet and confer pursuant to Local Rule CV-7(h).
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`Although the certificate of compliance states that the parties conducted a meet and confer, in
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`fact, there was no meet and confer on expedited briefing for all but one of the topics in the
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`Motion to Compel.1 The certificate of compliance is also deficient in that it fails to state “an
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`explanation of why no agreement could be reached.” This is likely due to the fact that the parties
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`did not address expedited briefing on most of the issues in the Motion to Compel in the June
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`23rd meet and confer.
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`Further, Invensys did not comply with the meet and confer process for its Motion
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`to Compel. For example, contrary to the certificate of compliance accompanying this Motion,
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`the parties never had a meet and confer about the issue of inadequate witness preparation. Micro
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`Motion itself has had complaints about the preparedness of Invensys’s Rule 30(b)(6) witnesses,
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`but, in the absence of a meet and confer to discuss producing additional witnesses or other
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`potential remedies, this issue is not ripe for decision by the Court. Given the fact that the parties
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`are producing witnesses for deposition nearly every day between now and the close of fact
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`discovery, this is an issue the parties should be able to resolve with a proper meet and confer.
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`1 Invensys’s Motion improperly identifies Linda Hansen as participating in the June 23, 2014 meet and
`confer. This is inaccurate. Linda Hansen did not participate; rather Kadie Jelenchick and Guy Harrison
`participated as Emerson’s and Micro Motion’s counsel.
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`Case 6:12-cv-00799-JRG Document 170 Filed 06/27/14 Page 3 of 6 PageID #: 5211
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`The Court should defer ruling on these issues until the parties have met and conferred as required
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`by the Local Rules.
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`In addition, Micro Motion has proposed compromises or agreed to production on
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`many of the other issues. For instance, the parties have met and conferred regarding the 2400S
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`transmitter. Although that transmitter is not within the definition of accused instrumentalities in
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`Invensys’s Infringement Contentions, Micro Motion has nonetheless agreed and has since
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`provided data concerning that product.
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`Other issues are similarly undeveloped. For example, Invensys’s Motion to
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`Compel complains about the form of Micro Motion’s sales information. However, Micro
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`Motion’s database does not have the ability to produce information in the way Invensys requests.
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`To resolve the issue, Micro Motion has volunteered to produce sample purchase orders which
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`would show how sales information is maintained. To the extent the sample purchase orders do
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`not satisfy Invensys, Micro Motion offered to collect and produce the entirety of the many
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`thousands of purchase orders. Invensys agreed to this approach, nevertheless, it filed its
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`premature Motion to Compel.
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`Finally, even if the meet and confer had occurred, Invensys’s proposed response
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`date of July 3 is unreasonable. Invensys’s Motion is lengthy and contains many exhibits. In
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`addition, Invensys waited until May 30, 2014, to send out deposition notices, more than twenty-
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`seven in all. Invensys also waited until June 4, 2014, to provide dates that its witnesses would be
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`available in response to Micro Motion deposition notices that were served months ago.
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`Invensys’s delay tactics have resulted in double and triple-tracking depositions between now and
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`the close of discovery on July 16. For example, in the four business days between the filing of
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`the Motion to Compel and the proposed response date, the parties will be conducting six
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`Case 6:12-cv-00799-JRG Document 170 Filed 06/27/14 Page 4 of 6 PageID #: 5212
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`depositions – one deposition in Tucson, Arizona on July 1; three depositions in Houston, Texas
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`on July 1 and 3; and one deposition in Dallas, Texas on July 2.2 In addition, Linda Hansen, one
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`of the two people who participated in the May 28th meet and confer regarding discovery-related
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`issues, underwent surgery on the day the Motion to Compel was filed (June 27) and will be
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`recovering over the next few days. Under the circumstances, it will be impossible to put together
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`a proper response by July 3.
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`For the reasons stated above, Micro Motion and Emerson respectfully request the
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`Court deny Invensys’s Motion for Expedited Briefing and require the parties to follow the
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`briefing schedule set forth in Local Rule CV-7.
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`2 After the close of business on June 27, Invensys’s counsel cancelled two depositions scheduled for July
`1 in Boulder, Colorado.
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`Case 6:12-cv-00799-JRG Document 170 Filed 06/27/14 Page 5 of 6 PageID #: 5213
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`Dated: June 27, 2014
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`Respectfully submitted,
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`Guy N. Harrison, State Bar No. 00000077
`Harrison Law Firm
`217 N. Center Street
`Longview, Texas 75601
`Phone: (903) 758-7361
`Fax: (903) 753-9557
`Email: guy@gnhlaw.com
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`/s/ Kadie M. Jelechick
`Linda E.B. Hansen, WI Bar No. 1000660
`Richard S. Florsheim, WI Bar No. 1015905
`Jeffrey N. Costakos, WI Bar No. 1008225
`Kadie M. Jelenchick, WI Bar No. 1056506
`Foley & Lardner LLP
`777 East Wisconsin Avenue
`Milwaukee, Wisconsin 53202
`Phone: (414) 271-2400
`Fax: (414) 297-4900
`Email: lhansen@foley.com
`rflorsheim@foley.com
`jcostakos@foley.com
`kjelenchick@foley.com
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`Jason A. Berta, IL Bar No. 6295888
`Foley & Lardner LLP
`321 North Clark Street, Suite 2800
`Chicago, Illinois 60654
`Phone: (312) 832-4500
`Fax: (312) 832-4700
`Email: jberta@foley.com
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`Attorneys for Defendant Emerson Electric
`Co. and Defendant and Counterclaim-
`Plaintiff Micro Motion, Inc.
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`Case 6:12-cv-00799-JRG Document 170 Filed 06/27/14 Page 6 of 6 PageID #: 5214
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 27, 2014, I electronically filed the foregoing document with
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`the Clerk of Court using the CM/ECF system which will send notification of such filing via
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`electronic mail to all counsel of record.
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`/s/ Kadie M. Jelenchick
`Kadie M. Jelenchick
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