Case 6:12-cv-00799-JRG Document 247 Filed 12/03/14 Page 1 of 6 PageID #: 9383
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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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`PLAINTIFF INVENSYS SYSTEMS, INC.’S RESPONSE TO DEFENDANTS’ MOTION
`TO AMEND DOCKET CONTROL ORDER
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`EAST\87225966.4
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`Case 6:12-cv-00799-JRG Document 247 Filed 12/03/14 Page 2 of 6 PageID #: 9384
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`The dilemma Defendants supposedly find themselves in is entirely attributable to their
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`own procrastination. Despite multiple reminders from counsel for Invensys, Defendants waited a
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`month after expert reports were served and until only a month before the deadline for rebuttal
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`reports to request a deposition of Invensys’s damages expert. When Defendants finally
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`requested deposition dates for Invensys’s damages expert in the beginning of November, he was
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`unavailable until mid-December. Defendants’ lack of diligence in seeking deposition dates does
`not constitute good cause for amending the Docket Control Order.1
`BACKGROUND
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`Expert reports, including Invensys’s damages report, were served on October 6. On
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`multiple occasions beginning in early October, Jeffrey Johnson, counsel for Invensys, asked
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`counsel for Defendants to let him know when Defendants wanted to depose Invensys’s experts.
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`Mr. Johnson warned counsel for Defendants that if Defendants did not request dates with
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`sufficient advance notice, the experts might be unavailable on the Defendants’ preferred dates.
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`In mid-October, counsel for Defendants asked for deposition dates for Invensys’s infringement
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`expert, Jeffrey Rodriguez, and Invensys made him available on November 21.
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`Invensys also
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`brought Manus Henry, the expert who tested Defendants’ flowmeters, from London to the
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`United States during Thanksgiving week so that he could be deposed before the deadline for
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`rebuttal reports.
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`But counsel for Defendants did not request deposition dates for Invensys’s damages
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`expert, Chris Bakewell, until the beginning of November. See Email from Kadie Jelenchick,
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`counsel for Defs., to Dawn Jenkins, counsel for Invensys (Nov. 25, 2014) (Ex. E to ECF No.
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`244) (“Our initial request for Mr. Bakewell’s deposition has been outstanding since November 3,
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`2014 . . . .”). During the November 3 meet-and-confer for the Joint Status Report, ECF No. 241,
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`(filed November 5) Claudia Wilson Frost, counsel for Invensys, advised counsel for Defendants
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`1 Moreover, it is Defendants’ improper refusal to produce relevant information until after the
`close of discovery, and then only when faced with a pending motion hearing on Invensys’s
`motion to compel, that has created further schedule complications regarding supplemental
`damages reports. This is a problem of Defendants’ own making.
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`Case 6:12-cv-00799-JRG Document 247 Filed 12/03/14 Page 3 of 6 PageID #: 9385
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`that she understood that Bakewell was not available for a deposition in November. Before the
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`November 12 hearing in Tyler, Ms. Frost advised Kadie Jelenchick and Jeffrey Costakos,
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`counsel for Defendants, that she understood that Bakewell has time on his calendar for the week
`of December 15.2 Thus, by the time counsel for Defendants asked for a deposition date for
`Bakewell, he was not available until the week of December 15. Rebuttal reports are due
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`December 5.
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`Counsel for Invensys never promised to produce any of its experts before the deadline for
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`rebuttal reports.
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`See Email from Jeffrey Johnson, counsel for Invensys, to Linda Hansen,
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`counsel for Defs. (Oct. 10, 2014) (Ex. A) (discussing the scheduling of expert depositions).
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`Because counsel for Defendants timely sought deposition dates for Rodriguez and Henry,
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`Invensys was able to accommodate Defendants’ request to depose Invensys’s experts before
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`Defendants’ rebuttal infringement report was due. In contrast, Defendants waited a month after
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`expert reports were served to request dates for Bakewell’s deposition, and then he was
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`unavailable until after the deadline for rebuttal reports.
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`ARGUMENT
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`I.
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`Defendants Have No Right to Take Bakewell’s Deposition Before Filing Their
`Rebuttal Report.
`No rule or local custom in this district requires that an expert be deposed before a rebuttal
`report is due.3 Although counsel for Invensys was willing to accommodate reasonable requests
`for deposition dates (as it did with Rodriguez and Henry), counsel for Defendants simply waited
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`too long to request dates for Bakewell’s deposition. Now, Bakewell is not available until the
`week of December 15.4 Defendants’ procrastination is not good cause (just the opposite).
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`2 Ms. Frost does not recall ever telling counsel for Defendants that Bakewell would be available
`for deposition during the week of December 1 and disputed this assertion in an email to
`counsel for Defendants prior to Defendants filing the pending motion.
`3 Mr. Costakos has acknowledged this in conferences between the parties.
`4 Bakewell is holding December 18 on his calendar for this deposition in Houston.
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`Case 6:12-cv-00799-JRG Document 247 Filed 12/03/14 Page 4 of 6 PageID #: 9386
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`In addition, the Docket Control Order governing this case has already been amended five
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`times, and Defendants have never before claimed a right to depose experts before the deadline
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`for rebuttal reports.
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`If Defendants were really concerned that Invensys might obtain a tactical
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`advantage because of the timing of expert depositions and rebuttal reports, they have had
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`numerous opportunities to raise this issue. Instead, they waited until 6:55 P.M. on the day before
`Thanksgiving to file their eleventh-hour motion to amend.5
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`II.
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`Amending the Docket Control Order Will Prejudice Invensys.
`Allowing Defendants to serve their rebuttal report after Mr. Bakewell’s deposition on
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`December 19 will prejudice Invensys. Not only is it inconsistent with the parties’ November 5
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`agreement (reflected in the Joint Status Report, ECF No. 241), it will not be feasible for counsel
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`for Invensys and Bakewell to review the report of Defendants’ expert, Keith Ugone, and prepare
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`for his deposition, before the Christmas holidays. Thus, under Defendants’ proposed schedule,
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`Ugone will have to be deposed in January. Extending the deadline for expert discovery on
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`damages until January 9, as Defendants request, will also leave Invensys with inadequate time to
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`prepare a Daubert letter brief challenging Ugone’s opinions. This is insufficient and unfair to
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`Invensys.
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`In contrast, Defendants overstate their complaints that they will be prejudiced by the
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`current deadline for rebuttal reports. Bakewell’s report is over 150 pages long, with an
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`additional eighty pages of exhibits, and extensive citations to documents and deposition
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`testimony. Because Bakewell’s report is so thorough and detailed, Defendants have ample
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`5 Defendants’ recitation of the facts in their certificate of conference is also misleading.
`Defendants raised the issues presented by the pending motion for the first time in an email sent
`at 6:40 P.M. on Tuesday, November 25. Defendants then requested a meet-and-confer “this
`evening or tomorrow morning,” a window of less than 24 hours immediately before
`Thanksgiving. Email from Kadie Jelenchick, counsel for Defs., to Dawn Jenkins, counsel for
`Invensys (Nov. 25, 2014) (Ex. E to ECF No. 244). Counsel for Invensys was not able to meet
`Defendants’ demand for a conference on such short notice immediately before a holiday.
`Moreover, Defendants’ local counsel had already left town for the holidays early Tuesday
`afternoon. Local counsel is required to participate in conferences on discovery motions. See
`LOCAL R. CV-7(h).
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`Case 6:12-cv-00799-JRG Document 247 Filed 12/03/14 Page 5 of 6 PageID #: 9387
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`notice of his opinions and theories and do not need any further explanation to prepare their
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`rebuttal report.
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`CONCLUSION
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`For the foregoing reasons, Invensys respectfully requests that the Court deny Defendants’
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`Motion to Amend Docket Control Order.
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`Dated: December 3, 2014
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`Respectfully submitted,
`/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
`Houston, TX 77002
`Telephone: 713.425.8400
`Facsimile: 713.425.8401
`Claudia.Frost@dlapiper.com
`Jeffrey.Johnson@dlapiper.com
`Dawn.Jenkins@dlapiper.com
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`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
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`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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`EAST\87225966.4
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`4
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`Case 6:12-cv-00799-JRG Document 247 Filed 12/03/14 Page 6 of 6 PageID #: 9388
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on December 3, 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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`EAST\87225966.4
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`5