Case 6:12-cv-00799-JRG Document 182 Filed 07/14/14 Page 1 of 7 PageID #: 5363
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`C.A. No. 6:12-cv-799-LED
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`JURY TRIAL DEMANDED
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`INVENSYS SYSTEMS, INC.,
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`v.
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`Plaintiff,
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`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
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`and
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`Defendants.
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`MICRO MOTION INC., USA,
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`v.
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`Counterclaim-Plaintiff,
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`INVENSYS SYSTEMS, INC.,
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`Counterclaim-Defendant.
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`INVENSYS SYSTEMS, INC.’S OPPOSED MOTION TO AMEND DOCKET CONTROL
`ORDER
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`

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`Case 6:12-cv-00799-JRG Document 182 Filed 07/14/14 Page 2 of 7 PageID #: 5364
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`Plaintiff Invensys Systems, Inc. (“Invensys”) requests that the Court amend the Docket
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`Control Order governing this case to move the expert deadlines back by approximately two
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`months. This amendment is necessary because the parties have taken (and are still taking)
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`numerous depositions, Invensys has a pending Motion to Compel and for Sanctions (“Motion to
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`Compel”), ECF No. 167, and the Court has not yet issued its claim construction order.
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`BACKGROUND
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`Over the past month the parties have taken approximately thirty-one depositions often
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`with multiple depositions occurring on the same day. Approximately seventeen more
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`depositions are scheduled over the next two weeks until virtually the last day of discovery.
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`Transcripts of many of these depositions are still being prepared, and the parties and their experts
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`will need additional time to review and assimilate this testimony in order to produce full and
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`complete expert reports. Third-party documents must also be received and reviewed.
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`On June 27, 2014, Invensys filed its sealed Motion to Compel against Defendants
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`Emerson Electric Co. and Micro Motion, Inc. (collectively “Defendants”) seeking (among other
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`things) production of sales information for all of the accused products and other information
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`relevant to Invensys’s damages. Invensys also filed a Motion for Expedited Briefing, ECF No.
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`168, which Defendants opposed.
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`On July 1, 2014, the Court denied Invensys’s Motion for Expedited Briefing because
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`“[w]ith over
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`fifteen months remaining before trial
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`in this case, expedited briefing is
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`unnecessary.” Order at 1, ECF No. 175. The Court also stated that “[t]he parties are free to file
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`the appropriate motion to amend the Docket Control Order.” Id. Briefing on Invensys’s Motion
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`to Compel will not be complete until August 4, 2014.
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`In addition, the Court held the Markman hearing on May 1, 2014. The parties disputed
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`several claim terms and argued that numerous claims were indefinite. The Court has not yet
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`entered a claim construction order.
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`Under the current Docket Control Order, expert reports are due on August 8, 2014, only
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`four days after the completion of briefing on Invensys’s Motion to Compel and only a few weeks
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`1
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`Case 6:12-cv-00799-JRG Document 182 Filed 07/14/14 Page 3 of 7 PageID #: 5365
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`after the close of fact discovery. See 4th Am. Docket Control Order at 3, ECF No. 103. Rebuttal
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`expert reports are due September 19, 2014, expert discovery closes October 17, 2014, and
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`summary judgment and Daubert motions are due January 16, 2015. See id. Under the current
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`schedule, the joint pretrial order is not due until July 31, 2015, almost five months after the
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`completion of briefing on dispositive motions. See id. at 2.
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`Invensys proposes the following amended deadlines:
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`Dates
`04/13/15
`(current date
`2/13/15)
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`03/16/15
`(current date
`1/16/15)
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`1/22/15
`(current date
`11/15/14)
`12/19/14
`(current date
`10/17/14)
`11/19/14
`(current date
`09/19/14)
`10/03/14
`(current date
`8/08/14)
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`Event
`Response to Dispositive Motions (including Daubert motions) due.
`Responses to dispositive motions filed prior
`to the dispositive motion
`deadline, including Daubert motions, shall be due in accordance with Local
`Rule CV-56 and Local Rule CV-7. Motions to extend page limits will only be
`granted in exceptional circumstances.
`Dispositive Motions due from all parties and any other motions that may
`require a hearing (including Daubert motions) due. Motions shall comply
`with Local Rule CV-56 and Local Rule CV-7. Motions to extend page limits
`will only be granted in exceptional circumstances.
`Deadline to File Letter Briefs for Summary Judgment Motions and
`Daubert Motions. See the Court’s website for further information.
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`Expert Discovery Deadline.
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`Parties designate rebuttal expert witnesses (non-construction issues), Rebuttal
`expert witness reports due. Refer to Local Rules for required information.
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`Parties with burden of proof designate expert witnesses (non-construction
`issues). Expert witness reports due. Refer to Local Rules for required
`information.
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`These amended deadlines will give the parties approximately two extra months to
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`complete their expert reports, expert discovery, and to file dispositive motions. None of the
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`other deadlines would need to be changed, and the parties and the Court would still have
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`approximately three months between the completion of briefing on dispositive motions and the
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`deadline to file the joint pretrial order.
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`2
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`

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`Case 6:12-cv-00799-JRG Document 182 Filed 07/14/14 Page 4 of 7 PageID #: 5366
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`STANDARD OF REVIEW
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`Under Rule 16(b)(4), a party seeking to amend a docket control order must show “good
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`cause.” In determining whether a party has met this standard, court’s typically consider four
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`factors: 1) the explanation justifying the need for the amendment, 2) the importance of the
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`amendment, 3) potential prejudice to the opposing party, and 4) the ability to mitigate any such
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`prejudice. See Ciena Corp. v. Nortel Networks, Inc., 233 F.R.D. 493, 494 (E.D. Tex. 2006).
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`ARGUMENT
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`An amendment to the Docket Control Order is necessary because over the past month the
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`parties have conducted (and are still conducting) depositions, Invensys has not received sales
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`information for all of the accused products, and the Court has not yet
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`issued its claim
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`construction ruling. First, over the past month the parties have taken approximately thirty-one
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`depositions. In fact, depositions are still being conducted, with seventeen additional depositions
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`scheduled over the next two weeks, and will continue by agreement of the parties until a week to
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`ten days after the last day of discovery on July 16. The current August 8 deadline for expert
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`reports will not give the parties or their experts sufficient time to review and digest all of this
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`evidence (especially in light of the amount of time it takes to obtain final deposition transcripts).
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`The parties are also awaiting and must review third-party documents, which are being produced.
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`Second, as discussed in Invensys’s Motion to Compel, at 9-11, Defendants have withheld
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`important
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`information that
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`is highly relevant
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`to Invensys’s damages,
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`including such basic
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`information as sales figures for all of the accused products. Even after it is produced, Invensys’s
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`damages expert will need time to review this information before preparing his report. The Court
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`has previously identified delays in receiving discovery as a valid reason for amending a docket
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`control order. See Ciena, 233 F.R.D. at 494-95.
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`Finally, the parties have disputed several claim terms and raised numerous indefiniteness
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`arguments. The Court’s resolution of these disputes may well affect the experts’ analysis of
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`infringement and validity as well as which claims are at issue.
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`3
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`Case 6:12-cv-00799-JRG Document 182 Filed 07/14/14 Page 5 of 7 PageID #: 5367
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`Allowing an amendment now is important because it will allow the experts to prepare
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`their reports on a complete record and obviate the need to amend expert reports later.
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`In
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`addition, if the Court concludes that some of the asserted claims are indefinite, the experts will
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`not have to address those claims in their reports. Keeping the current expert deadlines only
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`increases the potential costs for both parties and the need for more motion practice.
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`Amending the Docket Control Order will not prejudice Defendants. As the Court noted
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`in its order denying Invensys’s Motion for Expedited Briefing, trial in this case is approximately
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`fifteen months away. See Order at 1, ECF No. 175. The Court also invited the parties to seek an
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`amendment of the Docket Control Order in light of Invensys’s pending Motion to Compel. See
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`id. Moreover, Invensys’s proposed dates will not impact any of the pretrial deadlines or the trial
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`date.
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`Finally, even if extending the deadlines for expert discovery might somehow prejudice
`Defendants, there is plenty of time in the schedule to ameliorate any prejudice.1
`CONCLUSION
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`For the foregoing reasons, Invensys respectfully requests that the Court amend the
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`deadlines governing expert discovery, expert reports, and dispositive motions as proposed by
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`Invensys.
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`Dated: July 14, 2014
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`Respectfully submitted,
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`/s/ Claudia Wilson Frost
`Claudia Wilson Frost
`State Bar No. 21671300
`Jeffrey L. Johnson
`State Bar No. 24029638
`Dawn M. Jenkins
`State Bar No. 24074484
`DLA PIPER LLP
`1000 Louisiana, Suite 2800
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`1 As the attached email between counsel regarding this matter makes plain, Invensys is willing
`to accommodate scheduling issues that may arise due to intervening holidays in the schedule.
`No other potential “prejudice” to Defendants has ever been identified. See Email from Claudia
`W. Frost, counsel for Invensys, to Linda Hansen, counsel for Defs. (July 14, 2014) (Ex. A).
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`4
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`Case 6:12-cv-00799-JRG Document 182 Filed 07/14/14 Page 6 of 7 PageID #: 5368
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`Houston, TX 77002
`Telephone: 713.425.8400
`Facsimile: 713.425.8401
`Claudia.Frost@dlapiper.com
`Jeffrey.Johnson@dlapiper.com
`Dawn.Jenkins@dlapiper.com
`
`Nicholas G. Papastavros
`Daniel Rosenfeld
`DLA PIPER LLP
`33 Arch Street, 26th Floor
`Boston, MA 02110
`Telephone: 617.406.6000
`Facsimile: 617.406.6100
`Nick.Papastavros@dlapiper.com
`Daniel.Rosenfeld@dlapiper.com
`
`Todd S. Patterson
`DLA PIPER LLP
`401 Congress Ave., Suite 2500
`Austin, TX 78701-3799
`Telephone: 512.457.7017
`Facsimile: 512.721.2217
`todd.patterson@dlapiper.com
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`ATTORNEYS FOR PLAINTIFF
`INVENSYS SYSTEMS, INC.
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`CERTIFICATE OF CONFERENCE
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`I certify that on July 9, 2014, I met in person with Linda Hansen, counsel for Defendants,
`about the relief requested in this motion. I also conferred with Jeffrey Costakos, co-counsel for
`Defendants, and separately with Ms. Hansen again on the phone on July 11, 2014, at her request.
`I also exchanged emails with Ms. Hansen on July 13, 2014, and contacted her again by phone on
`July 14 at her request, left her a message and exchanged further email. We are unable to reach
`agreement.
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`/s/ Claudia Wilson Frost
`Claudia Wilson Frost
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`5
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`Case 6:12-cv-00799-JRG Document 182 Filed 07/14/14 Page 7 of 7 PageID #: 5369
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on July 14, 2014, all counsel of record who are deemed to
`have consented to electronic service are being served with a copy of this document via the
`Court’s CM/ECF system per Local Rule CV-5(a)(3). Any other counsel of record will be served
`by facsimile transmission and/or first class mail.
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`/s/ Claudia Wilson Frost
`Claudia Wilson Frost
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`6