Case 6:12-cv-00799-JRG Document 249 Filed 12/03/14 Page 1 of 8 PageID #: 9403
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Plaintiff,
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`vs.
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`Case No. 6:12-cv-00799-LED
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`INVENSYS SYSTEMS, INC.,
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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 REPLY IN SUPPORT
`OF THEIR OPPOSED MOTION TO AMEND DOCKET CONTROL ORDER
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`Case 6:12-cv-00799-JRG Document 249 Filed 12/03/14 Page 2 of 8 PageID #: 9404
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`Invensys’s allegations of “lack of diligence” and “procrastination” apply more to its own
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`conduct than that of Micro Motion. Invensys failed to respond to repeated requests for Mr.
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`Bakewell’s deposition, and failed to make him available for a deposition until 45 days after
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`Micro Motion requested deposition dates. Invensys argues that Micro Motion should have
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`requested deposition dates sooner, but fails to explain how that would have changed the
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`undisputed fact that Mr. Bakewell was inexplicably unavailable during the entire month of
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`November and the first half of December. Moreover, if Invensys knew ahead of time that Mr.
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`Bakewell’s availability in November and December was extremely limited, then Invensys’s
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`claim that it would be prejudiced by the requested extension is entirely its own doing.
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`There is good cause to justify the narrow amendment to the docket control order sought
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`by Micro Motion—namely, to extend the deadline for rebuttal expert reports on damages issues
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`to December 23, 2014 (which is three business days after Invensys has offered Mr. Bakewell for
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`deposition), and to extend the expert discovery deadline for damages issues to January 9, 2015
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`(to allow Invensys time to take the deposition of Micro Motion’s expert). Despite Invensys’s
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`baseless claims of procrastination and prejudice, Invensys does not dispute the following facts,
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`which are central to Micro Motion’s request to amend the docket control order:
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`(a) By November 3, 2014 counsel for Micro Motion requested from counsel for Invensys
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`available dates to take the deposition of Invensys’s damages expert, Mr. W. Christopher
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`Bakewell;
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`(b) Micro Motion’s request specifically called for dates prior to December 2, 2014 to take
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`Mr. Bakewell’s deposition; and
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`4825-1239-6320.
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`1
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`Case 6:12-cv-00799-JRG Document 249 Filed 12/03/14 Page 3 of 8 PageID #: 9405
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`(c) Invensys failed to respond to Micro Motion’s requests for weeks, and is unable to
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`produce Mr. Bakewell for a deposition prior to December 18, 20141—which is after Micro
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`Motion’s rebuttal expert report on damages is scheduled to be due.
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`I.
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`Invensys delayed in making Mr. Bakewell available for a deposition on a date that
`would have avoided the need to extend the deadlines.
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`Invensys does not dispute that it has refused to make its damages expert, Mr. Bakewell,
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`available for deposition despite Micro Motion’s repeated requests to do so. On November 3,
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`2014, counsel for Micro Motion requested that Mr. Bakewell be made available for a deposition.
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`(See Ex. A, Dkt. No. 244-2.) As shown in the following chart, Micro Motion’s repeated requests
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`for a specific date to depose Mr. Bakewell were ignored throughout most of November:
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`Date
`11/3/2014
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`Event
`Micro Motion requests dates for Mr. Bakewell’s deposition
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`11/11/2014
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`Invensys informs that Mr. Bakewell is not available the
`entire month of November, provides no firm date of
`deposition of Mr. Bakewell, but offers possible availability
`during the week of December 15th.
`11/19/2014 Micro Motion request to schedule deposition of Mr.
`Bakewell – Invensys does not respond with a date.
`11/21/2014 Micro Motion request to schedule deposition of Mr.
`Bakewell – Invensys does not respond with a date.
`11/24/2014 Micro Motion request to schedule deposition of Mr.
`Bakewell – Invensys does not respond with a date.
`11/25/2014 Micro Motion request to schedule deposition of Mr.
`Bakewell – Micro Motion files motion next day.
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`Citation
`Ex. A
`(Dkt. No. 244-2)
`Ex. B
`(Dkt. No. 244-3)
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`Ex. C
`(Dkt. No. 244-4)
`Ex. D
`(Dkt. No. 244-5)
`Ex. E
`(Dkt. No. 244-6)
`Ex. F
`(Dkt. No. 244-7)
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`Today, in its response brief, Invensys states that it has earmarked December 18, 2014—
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`i.e., the second-to-last day of expert discovery and 45 days after Micro Motion first requested
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`1 See Pl.’s Br. at 2 n.4 (Dkt. No. 247).
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`Case 6:12-cv-00799-JRG Document 249 Filed 12/03/14 Page 4 of 8 PageID #: 9406
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`deposition dates—as the date of Mr. Bakewell’s deposition. (Pl.’s Br. at 2 n.4.) Instead of
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`providing any kind of justification for its failure to respond or for Mr. Bakewell’s unavailability
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`during the entire month of November and during the first half of December, Invensys tries to
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`shift the blame to Micro Motion even though an earlier request would not have changed Mr.
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`Bakewell’s limited schedule. In other words, Micro Motion would still need to seek the
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`requested relief if it requested deposition dates for Mr. Bakewell earlier than it did. The
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`“procrastination” and “lack of diligence” mentioned by Invensys apply to its own failure to
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`produce Mr. Bakewell for a deposition and to its delinquent response to Micro Motion’s
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`requests. Moreover, if Invensys knew that Mr. Bakewell’s schedule was so limited, then
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`Invensys can hardly claim prejudice for information that it knew months ago and delayed in
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`sharing with Micro Motion.
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`II.
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`Gaping holes in Mr. Bakewell’s report justify Micro Motion’s needs to take the
`deposition of Mr. Bakewell before its rebuttal expert report is due.
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`Invensys claims there is no rule or local custom that requires Mr. Bakewell to be deposed
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`before Micro Motion’s rebuttal report is due, Pl.’s Br. at 2, but that ignores the prejudice to
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`Micro Motion caused by the nature of Mr. Bakewell’s report itself—which contains more than
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`two hundred citations to “Interviews” with Invensys employees or consultants. For example:
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`Footnotes 31, 66, 141-142, 157, 232, 235, 295, 346, 348, 354, 425, 427-428, 431,
`442, 449, 455, 492, 494-495, 498, 509, 515, 518, 523-524, 591-593, 605-606, and
`708 cite to an “Interview of Robert Jones.”
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`Footnotes 52-56, 68-74, 89-92, 109, 118, 121, 143, 151, 214, 218, 229-230, 283,
`288, 291, 293-295, 311, 325, 340, 342, 344, 346-347, 349-350, 360, 364, 397,
`404, 411, 425-426, 438, 440, 521-522, 584, 589, 603, 607, 611, 630-631, and
`739-740 cite to an “Interview of Dr. Rodriguez.”
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`Footnotes 52-56, 68-74, 79, 92, 121, 141-145, 151, 218, 283, 293-295, 346-347,
`349-350, 360, 364, 411-412, 428, 438, 440, 521-522, 584, 589, 603, 607, 611,
`630-631, and 729-731 cite to an “Interview of Dr. Henry.”
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`Case 6:12-cv-00799-JRG Document 249 Filed 12/03/14 Page 5 of 8 PageID #: 9407
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`Footnotes 62, 66, 141-142, 191, 197-201, 412-414, 425-428, 431, 442, 449, 515,
`518, and 604 cite to an “Interview with Robert Arias.”
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`Footnotes 354, 442, 503, 509, and 533 cite to an “Interview of Richard Casimiro.”
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`Footnotes 470-471 and 473-493 cite to an “Interview of Joseph Conlon.”
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`Footnote 508 cites to an “Interview of Wade Mattar.”
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`Footnote 551 cites to an “Interview of Carol Magoon.”
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`Many other citations to “Interviews” contained in Mr. Bakewell’s exhibits.
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`Mr. Bakewell’s report provides little or no substance regarding what was discussed during these
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`purported “Interviews” or what specific knowledge obtained from those “Interviews” allegedly
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`supports the respective statements made in his report. Micro Motion has already deposed the
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`individuals that Mr. Bakewell allegedly “Interviewed,” and those witnesses had very little to say
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`during their depositions respecting the same issues that Mr. Bakewell now relies upon. In an
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`effort to obtain some factual information, Micro Motion issued a subpoena to Mr. Bakewell
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`seeking, inter alia, his notes from those purported interviews. Counsel responded late to the
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`subpoena request, and it did not produce any notes prepared by Mr. Bakewell. (Ex. H, attached.)
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`Accordingly, the only possible way for Micro Motion to obtain the factual bases
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`underlying Mr. Bakewell’s “Interviews” is to depose Mr. Bakewell, but Invensys refused to
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`produce him prior to the rebuttal deadline. In fact, Invensys’s opposition to this motion appears
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`to be nothing more than an attempt to draw out Micro Motion’s rebuttal case before it will
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`produce Mr. Bakewell for his deposition. The victim of this tactic is Micro Motion, who has no
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`way of responding to the specific factual bases underlying the more than two hundred
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`“Interview” citations contained in Mr. Bakewell’s report. These gaping holes in Mr. Bakewell’s
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`report have nothing to do with “procrastination” and have everything to do with Invensys’s
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`attempt to shield the substance of Mr. Bakewell’s opinions until after Micro Motion’s time is up.
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`Case 6:12-cv-00799-JRG Document 249 Filed 12/03/14 Page 6 of 8 PageID #: 9408
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`III.
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`Invensys’s will not be prejudiced by the proposed amendment.
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`Invensys provides no support for its claim that it will be prejudiced by having to take the
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`deposition of Mr. Ugone in January. Earlier today, the parties met-and-conferred and Invensys
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`even offered that it would be willing to give Mr. Ugone until January 5, 2015 to respond to any
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`supplementation made by Mr. Bakewell to his expert report, without any mention of prejudice.
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`IV.
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`Invensys’s is not acting promptly in preparing a supplement to Mr. Bakewell’s
`report.
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`Counsel for Invensys has mentioned that there will be a forthcoming supplement to Mr.
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`Bakewell’s report to be provided on the very last day of expert discovery, even though all of the
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`supplemental documents will be produced by Micro Motion by the end of this week (nearly all
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`categories have already been produced). During today’s meet-and-confer sessions, Invensys
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`refused to agree to limit its supplement to the specific information that was produced by Micro
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`Motion pursuant to the parties’ Joint Status Report agreement—which was reached in an attempt
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`to resolve the discovery dispute. (See Joint Status Rpt., Dkt. No. 241.) This suggests that
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`Invensys is not only dragging its feet with respect to its supplementation, but also possibly
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`attempting to add material or theories to Mr. Bakewell’s report that should have already been
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`disclosed.
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`V.
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`Conclusion
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`For the foregoing reasons, Micro Motion’s request to amend the docket control order
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`Respectfully submitted,
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`/s/ Kadie M. Jelenchick
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`should be granted.
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`Dated: December 3, 2014
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`Case 6:12-cv-00799-JRG Document 249 Filed 12/03/14 Page 7 of 8 PageID #: 9409
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`Richard S. Florsheim, WI Bar No. 1015905
`Jeffrey N. Costakos, WI Bar No. 1008225
`Linda E.B. Hansen, WI Bar No. 1000660
`Kadie M. Jelenchick, WI Bar No. 1056506
`Foley & Lardner LLP
`777 East Wisconsin Avenue
`Milwaukee, WI 53202
`Telephone: 414.271.2400
`Facsimile: 414.297.4900
`Email: rflorsheim@foley.com
`jcostakos@foley.com
`lhansen@foley.com
`kjelenchick@foley.com
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`Attorneys for Emerson Electric Co. and
`Micro Motion, Inc.
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`Guy N. Harrison, State Bar No. 00000077
`Guy Harrison Law Offices
`217 N. Center Street
`Longview, TX 75601
`Telephone: 903.758.7361
`Facsimile: 903.753.9557
`Email: guy@gnhlaw.com
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`Case 6:12-cv-00799-JRG Document 249 Filed 12/03/14 Page 8 of 8 PageID #: 9410
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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 3, 2014, I electronically filed the foregoing document
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`with 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