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`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 1 of 14
`
`THE HONORABLE JAMES L. ROBART
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`CYWEE GROUP LTD.,
`
`CASE NO.: 2:17-cv-00932-JLR
`
`Plaintiffs,
`
`v.
`
`HTC CORPORATION, and HTC AMERICA,
`INC.,
`
`Defendants.
`
`JURY TRIAL DEMANDED
`
`DECLARATION OF JAMES C. YOON
`IN SUPPORT OF DEFENDANTS’
`MOTION TO AMEND SCHEDULING
`ORDER
`
`HTC CORPORATION, and HTC AMERICA,
`INC.,
`
`Third-Party Plaintiffs,
`
`v.
`
`STMICROELECTRONICS N.V.,
`STMICROELECTRONICS, INC., and CYWEE
`MOTION GROUP LTD.,
`
`Third-Party Defendants.
`
`DECLARATION OF JAMES C. YOON
`2:17-CV-00932-JLR
`
`WILSON SONSINI GOODRICH & ROSATI
`701 FIFTH AVENUE, SUITE 5100
`SEATTLE, WA 98104-7036
`TEL: (206) 883-2500
`FAX: (206) 883-2699
`
`

`

`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 2 of 14
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`I, James C. Yoon, declare as follows:
`
`1.
`
`I am an attorney at Wilson Sonsini Goodrich & Rosati P.C., counsel of record for
`
`Defendants HTC Corporation (“HTC Corp.”) and HTC America, Inc. (“HTC America”)
`
`(collectively, “HTC”) in the above-referenced matter.
`
`2.
`
`I submit this declaration in support of HTC’s Motion to Amend Scheduling
`
`Order. The matters set forth herein are based upon my personal knowledge, and if called as a
`
`witness, I could and would competently testify thereto.
`
`3.
`
`On January 11, 2018, HTC filed its Third-Party Complaint for (1) Indemnity,
`
`(2) Breach of Warranty, (3) Contribution, and (4) Violation of Unfair Business Practices-
`
`Consumer Protection Act
`
`(“Third-Party Complaint”) against Third-Party Defendants
`
`STMicroelectronics N.V. (“STM N.V.”), STMicroelectronics, Inc. (“STM, Inc.”), and CyWee
`
`Motion Group Ltd.
`
`4.
`
`Starting on January 12, 2018, I, on behalf of HTC, met and conferred several
`
`times telephonically and by email communications with Michael Shore of Shore Chan Depumpo
`
`LLP, counsel for Plaintiff CyWee Group Ltd. Counsel for CyWee Group Ltd. has informed me
`
`that CyWee Group Ltd. and CyWee Motion Group Ltd. are affiliated and share a major common
`
`investor. We discussed whether he would accept service on behalf Third-Party Defendant
`
`CyWee Motion Group Ltd. Mr. Shore confirmed that he is unable to accept service on behalf of
`
`CyWee Motion Group Ltd.
`
`5.
`
`On February 14, 2018, I, on behalf of HTC, met and conferred in person with
`
`Matt Berkowitz of Shearman & Sterling LLP, counsel for STM, Inc. The parties discussed
`
`whether STM, Inc. would accept service on behalf its wholly owning parent company, STM
`
`N.V. Mr. Berkowitz confirmed that he would not be able to accept service on behalf of STM
`
`N.V.
`
`6.
`
`After it became apparent that the parties would not be able to informally negotiate
`
`an agreement regarding service and service would not be waived, my firm retained the services
`
`of a company that specializes in translation and foreign service of process. Specifically, on
`
`DECLARATION OF JAMES C. YOON
`2:17-CV-00932-JLR
`
`1
`
`WILSON SONSINI GOODRICH & ROSATI
`701 FIFTH AVENUE, SUITE 5100
`SEATTLE, WA 98104-7036
`TEL: (206) 883-2500
`FAX: (206) 883-2699
`
`

`

`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 3 of 14
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`March 7, 2018, we retained the services of TransPerfect Legal Solutions (“TransPerfect”) for
`
`translation and foreign service of the Third-Party Complaint and Summons upon CyWee Motion
`
`Group Ltd. and STM N.V.
`
`7.
`
`On March 29, 2018, my firm, on behalf of HTC, filed a Motion for Issuance of
`
`Request for International Judicial Assistance (Letter Rogatory) (Dkt. # 67), in order to effect
`
`service of process upon CyWee Motion Group Ltd.
`
`8.
`
`As of this writing, the service process with respect to both CyWee Motion Group
`
`Ltd. and STM N.V. is still ongoing.
`
`9.
`
`On March 16, 2018, to supplement TransPerfect’s ongoing service efforts, I wrote
`
`a letter to CyWee Motion Group Ltd. identifying CyWee Motion Group Ltd. as a third-party
`
`defendant in the above-referenced matter and requesting that CyWee Motion Group Ltd. wave
`
`service of summons in accordance with Rule 4(d) of the Federal Rules of Civil Procedure. My
`
`firm mailed by Federal Express a package containing my letter and copies of the Third-Party
`
`Complaint, Summons, and Request for Waiver of Summons, along with certified translations of
`
`the Third-Party Complaint and Summons, to CyWee Motion Group Ltd. On March 19, 2018,
`
`my firm received confirmation that the package containing copies of Third-Party Complaint,
`
`Summons, and Request for Waiver of Summons, along with certified translations of the Third-
`
`Party Complaint and Summons, was delivered by Federal Express to CyWee Motion Group Ltd.
`
`To date, CyWee Motion Group Ltd. has not responded to my letter.
`
`10. On March 16, 2018, to supplement TransPerfect’s ongoing service efforts, I also
`
`wrote a letter to STM N.V. identifying STM N.V. as a third-party defendant in the above-
`
`referenced matter and requesting that STM N.V. wave service of summons in accordance with
`
`Rule 4(d) of the Federal Rules of Civil Procedure. My firm mailed by Federal Express a package
`
`containing my letter and copies of the Third-Party Complaint, Summons, and Request for
`
`Waiver of Summons, along with certified translations of the Third-Party Complaint and
`
`Summons, to STM N.V. On March 20, 2018, my firm received confirmation that the package
`
`containing copies of Third-Party Complaint, Summons, and Request for Waiver of Summons,
`
`DECLARATION OF JAMES C. YOON
`2:17-CV-00932-JLR
`
`2
`
`WILSON SONSINI GOODRICH & ROSATI
`701 FIFTH AVENUE, SUITE 5100
`SEATTLE, WA 98104-7036
`TEL: (206) 883-2500
`FAX: (206) 883-2699
`
`

`

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`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 4 of 14
`
`along with certified translations of the Third-Party Complaint and Summons, was delivered by
`
`Federal Express to STM N.V. To date, STM N.V. has not responded to my letter.
`
`11. Attached hereto as Exhibit A is a true and correct copy of the slip opinion with
`
`following case caption: Microsoft Corp. v. Motorola, Inc., No. 2:10-cv-00230-JLR, slip op.
`
`(W.D. Wash. Sept. 29, 2011).
`
`12. Attached hereto as Exhibit B is a true and correct copy of the slip opinion with
`
`following case caption: Pac. Bioscience Labs., Inc. v. Nutra Luxe MD, LLC, No. 2:10-cv-01823-
`
`JLR, slip op. (W.D. Wash. Apr. 2, 2012).
`
`I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true
`
`and correct. Executed March 30, 2018, in Palo Alto, California.
`
`s/ James C. Yoon
`James C. Yoon
`
`DECLARATION OF JAMES C. YOON
`2:17-CV-00932-JLR
`
`3
`
`WILSON SONSINI GOODRICH & ROSATI
`701 FIFTH AVENUE, SUITE 5100
`SEATTLE, WA 98104-7036
`TEL: (206) 883-2500
`FAX: (206) 883-2699
`
`

`

`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 5 of 14
`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 5 of 14
`
`
`
`EXHIBIT A
`
`EXHIBIT A
`
`
`
`
`
`
`
`
`

`

`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 6 of 14
`Case 2:10-cv-01823-JLR Document 93 Filed 09/29/11 Page 1 of 4
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`MICROSOFT CORPORATION,
`
`CASE NO. C10-1823JLR
`
`
`
`Plaintiff,
`
`ORDER
`
`
`
`v.
`
`MOTOROLA, INC, et al.,
`
`
`
`Defendants.
`
`
`This matter comes before the court on the parties’ Joint Motion for Amended
`
`Scheduling Order (“Joint Motion”) (Dkt. # 84) requesting (1) adjustments to the court’s
`
`Minute Order Setting Trial Dates and Related Dates (the “Scheduling Order”)
`
`(Dkt. # 76), and (2) clarification as to whether non-infringement contentions must be
`
`exchanged. The Joint Motion also indicates that the parties have agreed not to rely on
`
`expert reports during the claim construction phase of this matter. For the reasons stated
`
`below, the court GRANTS in part and DENIES in part the Joint Motion.
`
`ORDER- 1
`
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`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 7 of 14
`Case 2:10-cv-01823-JLR Document 93 Filed 09/29/11 Page 2 of 4
`
`
`
`Regarding adjustments to the court’s schedule, the Federal Rules of Civil
`
`Procedure provide that a schedule may be modified only for good cause and with the
`
`court’s consent. Fed. R. Civ. P. 16(b)(4). Here, the parties seek various adjustments to
`
`the Scheduling Order, including an extension for the completion of claim construction
`
`briefs, while holding constant the March 9, 2011 date for the following Markman
`
`hearing. The court issues scheduling orders setting trial dates and related dates to provide
`
`a reasonable schedule for the resolution of disputes. In its Scheduling Order, the court
`
`provided for 35 days between the deadline for completing claim construction briefing and
`
`the Markman hearing to allow the court adequate time to prepare for the hearing.
`
`Decreasing this time period will impact the court’s schedule in preparing for the
`
`Markman hearing. Additionally, the court finds no cause for extending the date for the
`
`completion of claim construction briefing because the parties, having agreed to forgo the
`
`use of expert reports in the claim construction phase, no longer must take the time to
`
`exchange such reports. Accordingly, as set forth below, the court adopts much of the
`
`parties’ proposed schedule, but shifts several of the proposed dates earlier in time by one
`
`week so that claim construction briefing concludes on February 3, 2012, the date set forth
`
`17
`
`in the Scheduling Order.
`
`With respect to the parties’ disagreement over the need to exchange non-
`
`infringement contentions, the court makes clear that it expects the parties to follow the
`
`Local Patent Rules unless directed otherwise. Due to the parties’ disagreement on this
`
`issue, the court adds a December 2, 2011 date to the schedule by which the parties shall
`
`ORDER- 2
`
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`

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`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 8 of 14
`Case 2:10-cv-01823-JLR Document 93 Filed 09/29/11 Page 3 of 4
`
`
`
`exchange non-infringement contentions in accordance with Local Patent Rule 121.1
`
`Thus, the court sets the following revised schedule2:
`
`Disclosure of preliminary invalidity contentions
`
`Exchange proposed claim terms for construction
`
`Preliminary Claim Chart
`
`
`
`
`
`
`
`
`
`Joint claim chart and Prehearing Statement
`
`Opening claim construction briefs due
`(24 pages per side)
`
`
`
`
`
`Responsive claim construction briefs due
`(24 pages per side)
`
`
`
`
`Markman hearing at 09:00 AM on
`
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`September 30, 2011
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`December 2, 2011
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`December 16, 2011
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`January 6, 2012
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`January 20, 2012
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`February 3, 2012
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`March 9, 2012
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`Reports from expert witnesses under FRCP 26(a)(2) due
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`April 27, 2012
`
`Rebuttal expert reports due
`
`
`
`
`
`All motions related to discovery must be noted
`on the motion calendar no later than the Friday
`before discovery closes pursuant to
`CR7(d)(d)(3) or CR37(a)(2)(B)
`
`Discovery completed by
`
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`May 25, 2012
`
`June 15, 2012
`
`
`
`
`
`1 The parties also brought to the court’s attention a discovery dispute relating to an
`interrogatory request from Motorola, Inc. (Dkt. # 84, Ex. A at 15-16). Neither party, however,
`requests relief from the court with respect to this dispute, and the court therefore does not
`address this dispute in this order.
`
` The court assumes the parties exchanged preliminary infringement contentions and
`disclosure of asserted claims on September 2, 2011, as required by the Scheduling Order.
`
` 2
`
`ORDER- 3
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`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 9 of 14
`Case 2:10-cv-01823-JLR Document 93 Filed 09/29/11 Page 4 of 4
`
`All dispositive motions must be filed by
`and noted on the motion calendar no
`later than the fourth Friday thereafter
`(see CR7(d))
`
`Settlement conference per CR 39.1(c)(2) held
`no later than
`
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`Mediation per CR 39.1(c)(3) held no later than
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`All motions in limine must be filed by
`and noted on the motion calendar no
`later than the second Friday thereafter
`
`
`
`
`
`Agreed pretrial order due
`
`Trial briefs, proposed voir dire questions and
`jury instructions
`
`
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`
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`Pretrial conference to be held at 02:00 PM on
`
`Length of Jury Trial: 5 days
`
`TRIAL DATE
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`July 24, 2012
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`August 24, 2012
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`September 14, 2012
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`October 22, 2012
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`November 8, 2012
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`November 19, 2012
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`November 13, 2012
`
`November 26, 2012
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`The court therefore GRANTS in part and DENIES in part the Joint Motion. The
`
`parties may contact chambers if they would like to set up a telephone conference with the
`
`court to discuss the case schedule.
`
`Dated this 29th day of September, 2011.
`
`A
`
`The Honorable James L. Robart
`U.S. District Court Judge
`
`20
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`
`
`ORDER- 4
`
`

`

`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 10 of 14
`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 10 of 14
`
`
`
`EXHIBIT B
`
`EXHIBIT B
`
`
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`
`
`
`
`

`

`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 11 of 14
`Case 2:10-cv-00230-JLR Document 99 Filed 04/02/12 Page 1 of 4
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`CASE NO. C10-0230JLR
`
`ORDER
`
`PACIFIC BIOSCIENCE
`LABORATORIES, INC.,
`
`
`
`Plaintiff,
`
`
`
`v.
`
`NUTRA LUXE MD, LCC, et al.,
`
`
`
`Defendants.
`
`
`This matter comes before the court on Defendants Nutra Luxe MD, LLC and
`
`Nutra Botanical MD, Inc.’s (“Nutra”) motion to modify the court’s scheduling order.
`
`(Mot. (Dkt. # 94).) Nutra’s motion seeks to extend the discovery deadline, the date for
`
`dispositive motions, and the date for motions in limine. (Id. at 2.) Having reviewed the
`
`motion, Plaintiff Pacific Bioscience Laboratories, Inc.’s (“PBL”) response (Dkt. # 96),
`
`Nutra’s reply (Dkt. # 97), and the relevant law, and being fully advised, the court
`
`GRANTS in part and DENIES in part the motion (Dkt. # 94).
`
`ORDER- 1
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`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 12 of 14
`Case 2:10-cv-00230-JLR Document 99 Filed 04/02/12 Page 2 of 4
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`
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`Nutra’s present motion seeks to move (1) the discovery deadline from April 16,
`
`2012 to June 23, 2012, (2) the date dispositive motions are due from May 15, 2012 to
`
`July 13, 2012, and (3) the date motions in limine are due from August 2, 2012 to August
`
`9, 2012. (Mot. at 2.) Because the trial date is set for September 4, 2012 (Dkt. # 48),
`
`Nutra’s proposed schedule would leave only 53 days between the date dispositive
`
`motions are due and the date of trial.
`
`
`
`Regarding adjustments to the court’s schedule, the Federal Rules of Civil
`
`Procedure provide that a schedule may be modified only for good cause and with the
`
`court’s consent. Fed. R. Civ. P. 16(b)(4). The court issues scheduling orders setting trial
`
`dates and related dates to provide a reasonable schedule for the resolution of disputes.
`
`First, the court generally sets the discovery cut-off 30 days prior to the deadline for filing
`
`dispositive motions in order to ensure that the court has before it a complete record when
`
`it considers a motion that could potentially dispose of the case. Second, the schedule
`
`generally provides 105 days between the deadline for filing dispositive motions and the
`
`trial date. This 105-day period takes into account: (a) an approximate 45-day lag
`
`between the date a party files a motion and the date that motion becomes ripe for the
`
`court’s consideration, see Local Rules W.D. Wash. CR 7(d)(3); and (b) an additional 30
`
`days during which the court endeavors to rule on the motion, id. at CR 7(b)(5). Anything
`
`short of a 105-day period leaves inadequate time for the parties to consider the court’s
`
`ruling and plan for trial or an alternate resolution.
`
`
`
`21
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`
`
`Nutra argues that its modifications to the current schedule are necessary because
`
`22
`
`the parties still need to take twenty-one depositions, including expert depositions. (Mot.
`
`ORDER- 2
`
`
`
`
`
`

`

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`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 13 of 14
`Case 2:10-cv-00230-JLR Document 99 Filed 04/02/12 Page 3 of 4
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`at 3-4.) Discovery in this matter has been open for over 13 months and in that time,
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`Nutra has not served a single notice of deposition. (Resp. at 2.) Although Nutra asserts
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`that PBL did not provide proposed depositions dates for its witnesses until March 9, 2012
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`(Mot. at 3, n.1), on the record before the court, PBL provided dates for its fact witnesses
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`in an e-mail sent on November 30, 2011. (Dkt. # 96-1 (Ltr. from Spencer Ross to Jeff
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`Weiss).) This e-mail afforded Nutra ample time to conduct its depositions without
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`running up against the deadline for discovery.
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`Nutra further argues that it could not have taken these depositions at an earlier
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`date, because it wanted to conduct these depositions after the court’s Markman ruling.1
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`(Mot. at 4.) The court is mindful that certain depositions—such as those of technical
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`experts—are more useful if taken after issuance of the court’s Markman order. Nutra,
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`however, was free during the discovery period to conduct depositions of fact witnesses,
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`for whom the court’s Markman order would have little relevance. Instead, Nutra did not
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`notice a single deposition and waited until one month prior to the close of discovery
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`before requesting an extension of the court’s deadlines. Accordingly, the court finds that
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`Nutra has not demonstrated good cause for the court to modify its scheduling order in a
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`way that would impinge on the 105-day period the court reserves for considering
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`dispositive motions.
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`1 The court issued its Markman order in this matter on March 21, 2012. (Dkt. # 98.)
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`ORDER- 3
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`Case 2:17-cv-00932-JLR Document 69 Filed 03/30/18 Page 14 of 14
`Case 2:10-cv-00230-JLR Document 99 Filed 04/02/12 Page 4 of 4
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`With that said, to provide Nutra the opportunity to fully prosecute its case, the
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`court will extend the deadlines in this matter as follows, keeping with the court’s current
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`trial date:
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`Discovery Completed by
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`Dispositive Motions Due
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`Motions in Limine Due
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`May 15, 2012
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`May 22, 2012
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`August 9, 2012
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`All other deadlines in this matter shall remain the same.
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`The court therefore GRANTS in part and DENIES in part Nutra’s motion (Dkt. #
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`94).
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`Dated this 2nd day of April, 2012.
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`A
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`The Honorable James L. Robart
`U.S. District Court Judge
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`ORDER- 4
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