Case 6:12-cv-00799-JRG Document 244 Filed 11/26/14 Page 1 of 10 PageID #: 9316
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Case No. 6:12-CV-00799-LED
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`))))))))))))))))))))))
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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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`EMERSON ELECTRIC CO.’S AND MICRO MOTION, INC.’S OPPOSED
`MOTION TO AMEND DOCKET CONTROL ORDER
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`Case 6:12-cv-00799-JRG Document 244 Filed 11/26/14 Page 2 of 10 PageID #: 9317
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`Emerson Electric Co. and Micro Motion, Inc. (collectively, “Micro Motion”)
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`respectfully request that the Court amend the Fifth Amended Docket Control Order, (Dkt. No.
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`212), to move the December 5, 2014 deadline for Micro Motion to serve its damages-related
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`rebuttal report to December 23, 2014. This amendment is necessary because Invensys is unable
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`to produce its damages expert, Mr. W. Christopher Bakewell, for deposition until the week of
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`December 15, 2014, which is after Micro Motion’s rebuttal report is due. To accommodate the
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`proposed deadline shift for the damages-related rebuttal, Micro Motion also respectfully requests
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`that the December 19, 2014 expert discovery deadline be extended until January 9, 2015, to
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`permit any deposition Invensys may like to take of Micro Motion’s damages expert. No other
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`deadlines, including the December 5, 2014 deadline for Micro Motion’s non-damages related
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`rebuttal expert reports, are impacted by Micro Motion’s requests.
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`Micro Motion’s counsel has attempted, without success, to reach an agreed-upon
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`schedule to address Mr. Bakewell’s unavailability. Despite repeated requests to Invensys’s
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`counsel over the past 24 days to discuss a modification to the Docket Control Order, Invensys’s
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`counsel has ignored Micro Motion’s inquiries – despite contacting Micro Motion on unrelated
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`matters. It was not until 4:53 p.m. (Central) today that Invensys’s counsel contacted Micro
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`Motion, withdrawing the offer to make Mr. Bakewell available for deposition and otherwise
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`insisting on Micro Motion’s compliance with the December 5, 2014 rebuttal report deadline.
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`Invensys’s counsel has also ignored Micro Motion’s counsel’s request to meet and confer on the
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`present Motion when it became clear that Court intervention was necessary.
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`1
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`Case 6:12-cv-00799-JRG Document 244 Filed 11/26/14 Page 3 of 10 PageID #: 9318
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`I.
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`BACKGROUND
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`The parties designated expert witnesses and served expert reports on those issues
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`in which they bear the burden of proof on October 6, 2014.1 Per the parties’ agreement, rebuttal
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`expert reports are due December 5, 2014. Expert discovery closes on December 19, 2014. (Dkt.
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`No. 212 at 3.) Under the current schedule, the joint pretrial order is not due until July 31, 2015,
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`more than three months after the briefing on Daubert and dispositive motions. (Id.) Trial is
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`scheduled to begin on October 13, 2015. (Id. at 1.)
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`Consistent with the schedule in this case, Micro Motion served its expert reports
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`directed to invalidity issues of the Invensys patents-in-suit, and Invensys served expert reports
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`relating to alleged infringement and purported damages. Thereafter, the parties agreed to
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`produce (and have since produced) their respective invalidity and infringement experts for
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`deposition before rebuttal reports are due on December 5, 2014. Micro Motion is poised to serve
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`any rebuttal expert reports on liability-related issues by December 5.
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`Invensys has not made its damages expert, Mr. Bakewell, available for deposition
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`despite Micro Motion’s repeated requests to do so. (Declaration of Kadie M. Jelenchick, Exs. A,
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`C-F.) Specifically, Micro Motion asked that Mr. Bakewell be produced for deposition no later
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`than December 2, 2014 – before the rebuttal expert due date. (Id. at Ex. A.) Invensys’s initial
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`response to this request was that Mr. Bakewell was not available the entire month of November.
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`(Id. at ¶ 2.) Thereafter, on November 11, Invensys indicated that Mr. Bakewell would not be
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`available until the week of December 15, which is after the deadline for rebuttal reports. (Id. at
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`Ex. B.) No specific date has been provided. (Id.)
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`1 The parties agreed to a three-day extension to the original October 3, 2014 deadline.
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`2
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`Case 6:12-cv-00799-JRG Document 244 Filed 11/26/14 Page 4 of 10 PageID #: 9319
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`Given Mr. Bakewell’s unavailability, Micro Motion proposed modifying the
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`deadline for its damages rebuttal report to December 23, 2014, to permit Micro Motion to depose
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`Mr. Bakewell before serving its rebuttal expert report. Micro Motion proposed similarly
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`extending the December 19, 2014 close of expert discovery – only with respect to damages – to
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`January 9, 2015, to give Invensys the opportunity to depose Micro Motion’s expert. (Id. at Ex.
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`C.) Micro Motion’s counsel discussed a possible schedule modification with counsel for
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`Invensys on November 12, 2014. Since that discussion, and until minutes before Micro Motion
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`filed the present Motion, counsel for Invensys had not responded to Micro Motion’s counsel’s
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`four email inquiries and one voicemail to discuss these issues. (Id. at Exs. C-F.) More
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`specifically, Micro Motion counsel’s contacted Invensys’s counsel on November 19, 21, 24, and
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`25, 2014, via email, and called Invensys’s counsel on November 25, 2014. (Id.) Except for
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`Invensys’s November 21, 2014 promise to “discuss Mr. Bakewell’s availability” with Micro
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`Motion the week of November 24, (Id. at Ex. G), which did not happen, Invensys has not
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`responded to any of Micro Motion’s requests.
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`At 4:53 p.m. (Central) today, Invensys’s counsel contacted Micro Motion,
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`withdrawing the offer to make Mr. Bakewell available for deposition and otherwise insisting on
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`Micro Motion’s compliance with the December 5, 2014 rebuttal report deadline, purportedly
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`because Invensys does not have access to certain discovery. Invensys unilaterally proposes that
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`Mr. Bakewell is now permitted to serve a supplemental damages report at some undisclosed
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`future date, and Micro Motion’s damages expert may rebut that supplement seven days
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`thereafter. In the meantime, Invensys dictates that no depositions of either Mr. Bakewell or
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`Micro Motion’s damages expert will go forward.
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`3
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`Case 6:12-cv-00799-JRG Document 244 Filed 11/26/14 Page 5 of 10 PageID #: 9320
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`The proposed deadline extensions for Micro Motion’s rebuttal damages report and
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`close of expert discovery will not impact any other deadlines in this case, including the
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`following:
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`
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`
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`
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`
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`
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`Serving expert rebuttal reports directed to liability issues (December 5, 2014);
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`Filing letter briefs for Daubert and summary judgment motions (January 22,
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`2015);
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`Filing dispositive motions (March 16, 2015);
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`Filing the joint pretrial order (July 31, 2015); and
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`Trial (October 13, 2015).
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`II.
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`STANDARD OF REVIEW
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`Under Rule 16(b)(4) of the Federal Rules of Civil Procedure, a party seeking to
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`amend a docket control order must show “good cause.” In determining whether a party has met
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`this standard, court typically consider four factors: (1) the explanation justifying the need for the
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`amendment, (2) the importance of the amendment, (3) potential prejudice to the opposing party,
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`and (4) the ability to mitigate any such prejudice. See Ciena Corp. v. Nortel Networks Inc., 233
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`F.R.D. 493, 494 (E.D. Tex. 2006).
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`III.
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`ARGUMENT
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`A.
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`Good Cause Exists To Modify The Docket Control Order.
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`Amending the Docket Control Order deadline for service of Micro Motion’s
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`damages rebuttal report is necessary because Micro Motion is entitled to know the entirety of
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`Mr. Bakewell’s opinions regarding Invensys’s alleged damages so that Micro Motion can
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`respond fully in its rebuttal report.
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`4
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`Case 6:12-cv-00799-JRG Document 244 Filed 11/26/14 Page 6 of 10 PageID #: 9321
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`To the extent Mr. Bakewell is deposed after Micro Motion serves its damages
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`rebuttal report, under the schedule in the case, Micro Motion is precluded from automatically
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`supplementing its rebuttal expert report, leaving any newly-raised opinions during the
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`deposition, unchallenged. Thus, requiring Micro Motion to serve its damages rebuttal before Mr.
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`Bakewell’s deposition only increases the potential costs for both parties and the need for more
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`motion practice to allow amendments to expert reports. In addition, by requiring Micro Motion
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`to serve its damages rebuttal report before Mr. Bakewell is deposed, Invensys has a roadmap to
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`Micro Motion’s critiques of Mr. Bakewell’s report, which unfairly gives Mr. Bakewell an
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`opportunity to attempt to bolster his deficient opinions through deposition (or later supplement).
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`These dangers are eliminated by permitting Micro Motion to serve its damages rebuttal report
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`after Mr. Bakewell is deposed and the entirety of his opinions have been disclosed. Indeed, as
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`noted above, the parties agreed to produce their expert witnesses in connection with infringement
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`and invalidity opening reports prior to the rebuttal report due date.
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`B.
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`Invensys Is Not Prejudiced By The Proposed Amendments.
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`Invensys is not prejudiced by the contemplated amendments to the Docket
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`Control Order. First, the parties discussed and agreed to produce their respective expert
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`witnesses for deposition before any rebuttal reports were due, and Invensys never indicated that
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`Mr. Bakewell should be treated any differently. Invensys should not be permitted to circumvent
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`the parties’ agreement by simply refusing to make Mr. Bakewell available in a timely manner or
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`ignoring the issue. Mr. Bakewell’s report was served October 6, 2014, which was two months
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`before Micro Motion’s rebuttal report was due, and, if he was unavailable between October 6
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`and December 2, 2014 to sit for his deposition, it could not be prejudicial to grant a brief
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`extension of the due dates to permit the deposition.
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`5
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`Case 6:12-cv-00799-JRG Document 244 Filed 11/26/14 Page 7 of 10 PageID #: 9322
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`Second, in light of the parties’ agreement to resolve certain discovery issues in
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`advance of the November 12, 2014 hearing on outstanding motions, Micro Motion agreed to
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`supplement its production of sales information as well as allow Invensys’s counsel to inspect
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`Micro Motion’s customer list. (See Dkt. No. 241 at 2-4.) Per the parties’ agreement, Mr.
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`Bakewell has the opportunity to supplement his expert report to incorporate any of the newly-
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`produced sales information or information gleaned from the inspection. (Id.) A portion of the
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`sales information was produced on November 21, 2014, and Invensys’s counsel inspected the
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`customer list November 21 and 25, 2014. The remaining sales information will be produced by
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`December 5, 2014. Invensys’s final hour complaints that this supplementation is deficient (or
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`somehow justifies Invensys’s unilateral modification of the scheduling order) ring hollow.
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`Micro Motion’s agreement to produce additional sales information and permit Mr. Bakewell’s
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`supplementation was premised on its ability to respond to these issues in its rebuttal report. (Id.)
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`Invensys agreed “to adjust the due date of this report as appropriate.” (Id.)
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`Finally, trial in this case is approximately eleven months away. Micro Motion’s
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`proposed modifications to the schedule will not impact any of the pretrial deadlines or the trial
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`date. Even if extending the deadlines as Micro Motion proposes might somehow prejudice
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`Invensys, there is plenty of time in the schedule to ameliorate any prejudice.
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`6
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`Case 6:12-cv-00799-JRG Document 244 Filed 11/26/14 Page 8 of 10 PageID #: 9323
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`IV.
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`CONCLUSION
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`For the foregoing reasons, Micro Motion respectfully requests that the Court
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`amend the December 5, 2014 deadline for service of Micro Motion’s rebuttal expert report
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`directed to damages issues and the close of expert discovery with respect to the same to
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`December 23, 2014 and January 9, 2015, respectively.
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`Dated: November 26, 2014
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`Respectfully submitted,
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`Guy N. Harrison, State Bar No. 00000077
`Guy Harrison Law Offices
`217 N. Center Street
`Longview, Texas 75601
`Phone: (903) 758-7361
`Fax: (903) 753-9557
`Email: guy@gnhlaw.com
`
`/s/ Kadie M. Jelenchick
`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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`Attorneys for Emerson Electric Co. and
`Micro Motion, Inc.
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`7
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`Case 6:12-cv-00799-JRG Document 244 Filed 11/26/14 Page 9 of 10 PageID #: 9324
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`CERTIFICATE OF CONFERENCE
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`I certify that on November 25, 2014, I attempted to schedule a meet and confer
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`with Invensys’s counsel to discuss the requested relief in this Motion, which was relief that I
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`previously sought to discuss on at least five occasions, including a November 12, 2014 in-person
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`conversation with Ms. Claudia Frost, and in four email communications directed to Ms. Frost
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`and/or Ms. Dawn Jenkins, dated November 19, 21, 24, and 25, 2014. On November 25, I also
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`phoned Ms. Frost and left her a voicemail requesting that we set a time to meet and confer
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`regarding the requested relief in this Motion. I communicated that I was available for a meet and
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`confer either the evening of November 25, 2014, or the morning of November 26, 2014.
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`Neither Ms. Frost nor any other counsel for Invensys returned my call, indicated that the
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`proposed time slots were unworkable, or otherwise contacted me about the relief sought. It was
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`not until 4:53 p.m. (Central) today that Invensys’s counsel contacted me, withdrawing the offer
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`to make Mr. Bakewell available for deposition and otherwise insisting on Micro Motion’s
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`compliance with the December 5, 2014 rebuttal report deadline. In light of the repeated silence
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`in response to my inquiries, the upcoming December 5, 2014 deadline for service of rebuttal
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`reports, and Invensys’s last-minute unilateral attempts to modify the Docket Control Order,
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`Micro Motion was left with no choice but to file this Motion.
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`/s/ Kadie M. Jelenchick
`Kadie M. Jelenchick
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`8
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`Case 6:12-cv-00799-JRG Document 244 Filed 11/26/14 Page 10 of 10 PageID #: 9325
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 26, 2014, I electronically filed the foregoing
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`document with the Clerk of Court using the CM/ECF system which will send notification of such
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`filing via electronic mail to all counsel of record.
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`/s/ Kadie M. Jelenchick
`Kadie M. Jelenchick
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`9